

Opinion issued April 12, 2012.


In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00971-CV
———————————
Stephen Whittington, Appellant
V.
Marc H.
Nathan, Appellee

 

 
On Appeal from the 295th District
Court
Harris County, Texas

Trial Court Case No. 2009-04631
 

 
DISSENTING OPINON
The trial
court properly granted summary judgment pursuant to the Fraudulent Transfer
Act’s statute of repose. This Court’s reversal of summary judgment is an
equitable outcome under the facts of this single case, but as the rule of law,
it undermines the Fraudulent Transfer Act’s principle purpose of creating
“uniformity” across the states and is contrary to the “absolute” nature of a
statute of repose. To reach its holding, the Court had to read the phrase “the applicable
statute of limitations” in section 16.064 of the Civil Practices and Remedies
Code to mean “an applicable statute of limitations or repose”—language the Legislature
could have adopted but did not. I therefore respectfully dissent.
Whittington’s Claim Was “Extinguished” by 
the
Fraudulent Transfer Act’s Statute of Repose
 
          Section
24.010(a)(1) of the Fraudulent Transfer Act provides that certain Fraudulent
Transfer Act claims are “extinguished” unless brought “within four years after
the transfer was made or the obligation was incurred or, if later, within one
year after the transfer or obligation was or could reasonably have been
discovered by the claimant[.]” Tex. Bus. & Com. Code Ann. § 24.010(a)(1) (West 2009). The
parties agree that the statute of repose in section 24.010(a)(1) applies to
Whittington’s claims against Nathan and that it bars Whittington’s claims
unless the “savings clause” in section 16.064(a) of the Civil Practice and Remedies
Code (CPRC) tolls the running of the statute of repose. See Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (West 2008). 
Section 16.064(a) “suspends the running of the applicable
statute of limitations” for sixty days when a timely-filed suit is dismissed
for lack of jurisdiction so that the plaintiff may re-file in a court of
competent jurisdiction even if the second suit would otherwise be barred by
limitations. Id. Whittington contends
that his suit was filed timely because it was filed within sixty days after the
Nevada court dismissed his earlier action for lack of jurisdiction. Nathan responds
that section 16.064 expressly applies to “statute[s] of limitations” only and
does not apply to section 24.010, which is a statute of repose. I agree for three
reasons: (A) by its plain language, section 16.064 modifies only “the
applicable statute of limitations”; (B) tolling is contrary to the nature and
purpose of a statute of repose, and courts should not read a savings clause to toll
a statute of repose absent a basis in the statute; and (C) tolling is contrary
to the Fraudulent Transfer Act’s statute of repose’s goal of creating
uniformity across the states with respect to when suit must be brought
thereunder.
A.      Section 16.064 does not apply to the
Fraudulent Transfer Act’s statute of repose
 
The issue in this case is one of
statutory construction, requiring
the Court to determine the meaning and effect of section 16.064 of the CPRC and
section 24.010 of the Fraudulent Transfer Act. In construing statutes, our primary objective is to give
effect to the Legislature’s intent. Galbraith Eng’g
Consultants, Inc. v. Pochucha, 290 S.W.3d 863,
867 (Tex. 2009); Tex. Gov’t Code Ann.
§ 312.005 (West 2005). To determine the Legislature’s intent, we first look to
the plain language of the statute. Fitzgerald v. Adv. Spine Fixation Sys., 996 S.W.2d 864, 865 (Tex. 1999). If
the words of a statute are clear and unambiguous, we apply them according to
their plain and common meaning. Galbraith, 290 S.W.3d at
867. When the Legislature’s
intent cannot be ascertained from the statute’s plain language, we resort to
additional construction aids, such as the objective the Legislature
sought to attain, the circumstances under which it enacted the statute,
legislative history, former statutory provisions, and the consequences of a
particular construction. See id. at 867–68; Tex. Gov’t
Code Ann. § 311.023 (1)–(5) (West 2005). 
1.       The parties agree that section 24.010 is
a statute of repose 
 
Whittington and Nathan agree that
section 24.010 of the Fraudulent Transfer Act is a statute of repose. See Cadle Co. v. Wilson, 136 S.W.3d 345, 350 (Tex. App.—Austin
2004, no pet.) (holding that section 24.010 is a
statute of repose rather than merely a statute of limitations); Duran v.
Henderson, 71 S.W.3d 833,
837–38 (Tex. App.—Texarkana 2002, pet. denied) (same). While a
statute of repose and a statute of limitations both relate to the expiration of
the time within which suit may be brought, they have important differences. See Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v.
Rankin, 307 S.W.3d 283, 286–87
(Tex. 2010) (holding that statute of repose for medical malpractice actions did
not violate Open Courts provision of  Texas
Constitution even though it extinguished claim that would not have been barred
under statute of limitations due to discovery rule); Galbraith, 290
S.W.3d at 866–68 (holding that statute allowing joinder of certain claims
otherwise barred by limitations did not apply to allow claims precluded by
ten-year statute of repose for design professionals). In both Rankin and Galbraith, the Texas Supreme Court recognized that “while statutes
of limitations operate procedurally to bar the enforcement of a right, a
statute of repose takes away the right altogether, creating a substantive right
to be free of liability after a specified time.” Rankin, 307 S.W.3d at 286–87 (quoting Galbraith, 290 S.W.3d at 866). 
Texas courts of appeals have treated section 24.010 as a statute
of repose on this basis. In Duran,
the Texarkana Court of Appeals similarly stated the substantive distinction
between statutes of repose and statutes of limitations: one is a “procedural
device” that “operates to bar enforcement of a right,” while the other is a
“substantive condition” that “takes away the right altogether.” 71 S.W.3d at 837–38. The Duran
court then looked to the purposes of the Fraudulent Transfer Act, and
section 24.010 specifically, as reflected in the drafters’ comments, to
conclude that section 24.010 was intended to operate as a statute of repose
rather than as a statute of limitations. Id.
at 838 (citing Unif. Fraudulent Transfer Act § 9, 7A–2 U.L.A. 266, 359 cmt.
2 (1999) and United States v. Bacon, 82 F.3d 822, 823–24 (9th Cir.1996)).
Similarly, in Cadle Co. v. Wilson, the Austin Court of Appeals
observed: “[S]ection 24.010 is not simply a limitations provision, but is
specifically titled ‘Extinguishment of Cause of Action.’ Such language
indicates that the limitations provision of TUFTA is intended to be strictly construed and that section
24.010 is technically a statute of repose, rather than a statute of limitations.”
136 S.W.3d at 350 (citing Duran, 71 S.W.3d at 837). The Texas Supreme Court cited Cadle favorably in Galbraith. Galbraith,
290 S.W.3d at 868.
2.       Section 16.064 expressly applies to
“statute[s] of limitations”
 
Section 16.064 of the CPRC “suspends the running of the
applicable statute of limitations” between when Whittington filed his
fraudulent transfer action in Nevada and when he filed the same action in
Texas. Tex. Civ. Prac.
& Rem. Code Ann. § 16.064. Whittington argues that the phrase “the
applicable statute of limitations” in section 16.064 is ambiguous and should be
read to include both statutes of limitations and statutes of repose. Relying on
Galbraith, he urges this Court to
“resort to additional construction aids, such as the objective of the law, the
legislative history, the common law or former statutory provisions . . . and
the consequences of a particular construction” to conclude that the phrase is intended
to include statutes of repose. But the Galbraith
Court reached the opposite result, holding that another “savings” statute
did not revive a claim after expiration of the statute of repose. 290 S.W.3d at 867–68. 
Moreover, the Galbraith
Court considered statutory construction aids only after determining that
the savings clause at issue was ambiguous. Id.
at 867 (stating that it was “unclear . . . whether the Legislature intended
the term ‘limitations’ in section 33.004(e) to apply narrowly to statutes of
limitations or more broadly to include statutes of repose because the term has
been used in both contexts”); see also Acts
of May 30, 2011, 82nd Leg., R.S., ch. 203, § 5.02,
2011 Tex. Sess. Law Serv. ch. 203 (repealing former Tex. Civ. Prac.
& Rem. Code Ann. § 33.004(e), which allowed claimants to join responsible
third parties within sixty days of designation, “even though such joinder would
otherwise be barred by limitations”).
Citing instances in the CPRC where the Legislature used the term
“limitations” in a manner that encompassed both statutes of limitations and
statutes of repose, the Galbraith Court
concluded that the single word “limitations,” as used in the CPRC, was
ambiguous with respect to whether it referred to statutes of limitations only
or whether it also referred to statutes of repose. Galbraith, 290 S.W.3d at 866 & n.4  (citing Tex.
Civ. Prac. & Rem. Code Ann. §§ 16.008(c),
16.009(c), 16.011(b), 16.012(d-1)).
Section 16.064, however, does not refer to “limitations”
generally, but rather, refers to “statutes of limitations” specifically. See Tex.
Civ. Prac. & Rem. Code Ann. § 16.064. The
use of this specific term of art leaves little room for “interpretation” of the
Legislature’s acutely expressed intent, and Whittington has not identified any
instances in which the Legislature used the term “statute of limitations” to
encompass both statutes of limitations and statutes of repose. Cf. id. § 150.002(g) (relating to actions
against design professionals and stating, “This statute shall not be construed
to extend any applicable period of limitation or repose.”); see also id.
§ 147.043 (regarding disability and explaining its application to “periods of
limitation and repose”); id. § 147.044(b) (mentioning the “period of
limitation or repose” under this section); Tex.
Ins. Code Ann. § 462.309(c) (West 2009) (stating: “Statutes of
limitation or repose are not tolled during the stay, and any action filed
during the stay is stayed upon the filing of the action.”).
Thus, section 16.064 unambiguously
applies only to “the applicable statute of limitations” and does not alter the
Fraudulent Transfer Act’s statute of repose.
B.      Tolling undermines the “absolute” nature
of a statute of repose 
 
“The purpose of a statute of repose is to provide ‘absolute
protection to certain parties from the burden of indefinite potential
liability.’” Galbraith, 290 S.W.3d at
866 (quoting Holubec v. Brandenberger,
111 S.W.3d 32, 37 (Tex. 2003)). Statutes of repose “begin to run on a readily
ascertainable date” and, unlike statutes of limitations, are “not subject to
judicially crafted rules of tolling or deferral.” Rankin, 307 S.W.3d at 286. “Indeed, the
key purpose of a repose statute is to eliminate uncertainties under the related
statute of limitations and to create a final deadline for filing suit that is
not subject to any exceptions, except
perhaps those clear exceptions in the statute itself.” Id. (emphasis added); see
also Holubec,
111 S.W.3d at 37 (stating that statutes of repose “fix an outer limit beyond
which no action can be maintained.”); Aguilar v. Trujillo, 162 S.W.3d
839, 853 (Tex. App.—El Paso 2005, pet. denied) (“A claim extinguished by
operation of a statute of repose does not ‘relate back’ to the filing of an
earlier pleading as it would in the case of a statute of limitation.”). The exception requested by Whittington—tolling
under section 16.064—is not within section 24.010 itself. As in Galbraith, the key purpose of a
definitive deadline is frustrated if courts interpret external statutory
savings provisions as reviving the cause of action extinguished by the statute.
See Galbraith, 290
S.W.3d at 869.
1.       Galbraith declined to apply an ambiguous
revival statute to a statute of repose 
 
Even if section 16.064 were ambiguous as to whether it
applied to statutes of repose, the Galbraith
Court’s analysis counsels against a broad interpretation of such savings
provisions to include statutes of repose. Galbraith,
290 S.W.3d at 867–69. The Galbraith Court determined that construing the savings clause at
issue in that case to apply to statutes of repose “would defeat the recognized
purpose for statutes of repose, that is, the establishment of a definite end to
the potential liability, unaffected by rules of discovery or accrual.” Galbraith,
290 S.W.3d at 868. Observing that statutes of repose
create a “substantive right to be free from liability after a legislatively
determined period,” the Court concluded that statutes of repose “thus
represent[] the Legislature’s considered judgment as to the inadequacy of the
traditional statutes of limitations for some types of claims.” Id. The Court held: “Because application
of the revival statute in this instance effectively renders the period of
repose indefinite, a consequence clearly incompatible with the purpose for such
statutes, we conclude that the Legislature intended for the term ‘limitations’
in section 33.004(e) to refer only to statutes of limitations.” Id. at 869.
2.       Although
the Court distinguishes Galbraith, the
distinction does not provide a basis for reaching a different result
 
In Galbraith, the court of appeals treated former section 33.004(e)’s
savings clause as merely extending the statute of repose period by sixty days. Id. at 866. The Supreme Court rejected
this view, noting that the savings clause could actually extend the life of a
claim indefinitely because the sixty-day savings period was linked to the date
on which a party was designated as a responsible third party in a lawsuit, an
event that could happen “months or years” after the claim was extinguished by
the statute of repose. Id. at
866−67. This Court distinguishes Galbraith
on this basis, contending that the savings clause in section 16.064 creates
no such indefiniteness because it merely extends the time for filing a suit for
sixty days after dismissal of the earlier action. 
I agree that the
sixty-day revival period in section 16.064 is, as this Court suggests, distinguishable
from the sixty-day revival period in former section 33.004(e), but I disagree
that this distinction alleviates the potential problems identified by the Supreme
Court in Galbraith. Like former section
33.004(e), the sixty-day savings period in section 16.064 does not commence on
the date the statute of repose expires and thus does not merely extend the statute
of repose by sixty days. Instead, it commences on the date that the claimant’s
prior action in another jurisdiction is dismissed, creating a sixty-day grace
period for filing suit that begins at some indefinite time after the statute of
repose expired. See Tex. Civ. Prac. & Rem. Code Ann. § 16.064. Like the designation of a responsible
third party in another lawsuit, the final dismissal of another lawsuit may come
“months or years” after the statute of repose deadline. Cf. Galbraith, 290 S.W.3d at 867. 
This case demonstrates as much. Whittington alleges a
fraudulent transfer in May 2004, but he did not file this action until January
2009—eight months after the statute of repose “extinguish[ed]”
his claims. But this case does not demonstrate the full extent of potential post-repose
revival under the Court’s interpretation of section 16.064. The Nevada court
disposed of Whittington’s claims against Nathan relatively quickly—six months
after he initiated the suit. And Whittington filed this action within sixty
days of the Nevada trial court’s dismissal, rather than after pursuing his
appellate options in Nevada to finality. Not all cases will be as prompt.
Challenges to personal jurisdiction frequently require substantial discovery
and briefing. It is reasonable to expect that it may be a year or more before a
trial court is able to dispose of claims on the ground that it does not have
personal jurisdiction over a party. Similarly, it reasonably may take several
more years for a claimant to pursue all of his appellate options in another
jurisdiction, further delaying the date on which the dismissal “becomes final,”
commencing accrual of section 16.064’s sixty-day savings period. See Tex.
Civ. Prac. & Rem. Code Ann. § 16.064. Thus,
while the Court’s holding here gives life to Whittington’s fraudulent transfer
claim eight months after the statute of repose extinguished that claim, the
holding may, in the next case, give life to a fraudulent transfer claim four
years (or longer) after the statute of repose extinguished the claim—doubling
the legislatively-mandated period for filing such a claim.
For these reasons, like in Galbraith, “application of the revival
statute in this instance effectively renders the period of repose indefinite, a
consequence clearly incompatible with the purpose for such statutes[.]” Galbraith, 290 S.W.3d at 869. Thus, even if section 16.064 were ambiguous
as to whether it applies to statutes of repose, which it is not, I would follow
the Supreme Court’s lead in Galbraith and
conclude that the Legislature intended for the phrase “statute of limitations”
in section 16.064 to refer only to statutes of limitations. See id.
C.      Tolling
undermines the express purpose of the Fraudulent Transfer Act’s statute of
repose
 
The legislative histories of the Fraudulent Transfer Act and the Uniform Fraudulent Transfer
Act from which it was adopted weigh against revival. Cf. Galbraith, 290 S.W.3d 868 (looking to Legislature’s purpose in
enacting statute of repose for design professionals in determining whether it
was tolled by CPRC’s former provision for
post-limitations joinder). When it adopted the Fraudulent Transfer Act,
the Legislature made express its overarching intent for the Act: “This chapter
shall be applied and construed to effectuate its general purpose to make
uniform the law with respect to the subject of this chapter among states
enacting it.” Tex.
Bus. & Com. Code Ann.
§ 24.012; see also Tex. Gov’t Code Ann. § 311.028 (West
2011) (“A uniform act included in a code shall be construed to effect its
general purpose to make uniform the law of those states that enact it.”). The very
title of the statute—the Uniform
Fraudulent Transfer Act—underscores
the need for uniformity in its interpretation. Id. § 24.001. 
The comments to the Uniform Fraudulent Transfer Act
demonstrate that its drafters shared this goal and designed section 24.010 to
resolve inconsistencies between the states with regard to when a fraudulent
transfer claim could be brought. See Unif. Fraudulent Transfer Act § 9, 7A–2 U.L.A. 266, 359 cmt.
2 (“this section should mitigate the uncertainty and diversity that have
characterized the decisions applying statutes of limitations to actions to
fraudulent transfers and obligations”); see
also Duran, 71 S.W.3d at 838. To effectuate this purpose, section 24.010
provides for the “extinguishment” of a right of action for fraudulent transfer,
not merely a bar to the remedy. Tex.
Bus. & Com. Code Ann. § 24.012; see
also Unif. Fraudulent Transfer Act § 9, 7A–2 U.L.A. 266, 359 cmt.
2; Duran, 71 S.W.3d
at 838. Contrary to
Whittington’s contentions,[1]
the statute’s goal—uniformity through an ascertainable end to potential
liability not subject to each state’s various rules for tolling and deferral—is
frustrated if section 24.010 is subject to statutory tolling under section
16.064 of the CPRC. Cf. Sw. Bank v. Info.
Support Concepts, Inc., 149 S.W.3d 104, 108–09 (Tex. 2004) (declining to apply
CPRC’s proportionate responsibility scheme to conversion claims under Uniform
Commercial Code when doing so would subject Texas litigants to liability that
differed from other states, contrary to purpose of uniform act). 
The parties have not cited, and I have not found, authority
from another state that has applied or declined to apply a savings clause for
cases originally filed in the wrong jurisdiction to toll an equivalent Uniform
Fraudulent Transfer Act statute of repose. A number of states that have adopted
similar statutes of repose under their enactment of the Uniform Fraudulent
Transfer Act have declined to apply other tolling rules to their repose statute
on the ground that doing so would disturb the state-to-state uniformity the
Uniform Fraudulent Transfer Act was designed to achieve. See, e.g., Rafuse v. Stryker, No. 090107, 2010 WL 2431921, at *5 (Mass.
Super. Ct. Apr. 21, 2010) (holding that equivalent provision in
Massachusetts’s Uniform Fraudulent Transfer Act was statute of repose and
therefore was not subject to discovery rule except as expressly provided for
within statute); K-B Bldg. Co. v. Sheesley Constr.,
Inc., 833 A.2d 1132, 1137 (Pa. Super. Ct. 2003) (rejecting argument that
period for bringing action under Pennsylvania’s Uniform Fraudulent Transfer Act
was tolled for judgment creditor until judgment was entered in creditor’s
favor, reasoning that rule would be inconsistent with statutory purpose of conformity
across states);[2] Intili v. DiGiorgio,
693 A.2d 573, 576–78 (N.J. Super. Ct. Ch. Div. 1997) (observing that purpose of
New Jersey’s Uniform Fraudulent Transfer Act was to align state law on
fraudulent transfers and holding that statute of repose period was not subject
to equitable tolling). Whittington cites to cases in which a few states have
applied other savings provisions to statutes of repose under other state statutes—generally,
medical malpractice statutes—but those cases are distinguishable because, among
other reasons, the statutes at issue were not part of uniform acts designed to create
conformity across the states. See Deluna v. Burciaga, 857
N.E.2d 229, 238 (Ill. 2006) (addressing interaction between savings provision
and statute of repose found in Illinois’s medical malpractice statute);[3]
See v. Hartley, 896 P.2d 1049, 1055
(Kan. 1995) (addressing interaction between savings provision and statute of
repose found in Kansas’s medical malpractice statute); Cronin v. Howe,
906 S.W.2d 910, 914 (Tenn. 1995) (applying savings provision to Tennessee’s
medical malpractice statute of repose);[4]
cf. Levy v. Markal
Sales Corp.,
724 N.E.2d 1008 (Ill. App. 1st Dist. 2000) (declining to apply rule tolling
deadline for filing suit for judgment creditors to statute of repose in
Illinois’s Uniform Fraudulent Transfer Act), appeal denied, 731 N.E.2d 764 (2000). 
Application of section 16.064’s savings provision to the
Fraudulent Transfer Act disrupts uniformity in several respects. First,
although some other states have similar savings provisions, I have found no
case in which another state applies such a provision to the statute of repose
in their uniform fraudulent transfer act. Second, section 16.064 is not
mirrored in the statutes of all states,[5]
and even among those states that have adopted a similar savings provision, there are differences in the scope of cases
reached by the provision[6]
and in the length of time for which the provision will toll an applicable
statute of limitations.[7]
The tolling period includes not only the indefinite period during which the
prior action is pending in another jurisdiction but also a state-specific
post-dismissal period, which can range from thirty days to three years.[8]
Thus, even if all states with similar savings provisions were to apply such
provisions to the statute of repose in their uniform fraudulent transfer act,
there would be no uniformity across the states or even among the states with
savings provisions. 
Moreover, in light of section 24.010’s express inclusion of
a tolling period based on the discovery of the underlying fraudulent transition
in subsection (a)(1) and a tolling period for disability under subsection (c),[9]
the statute’s omission of any other tolling period is some indication that the
Legislature did not intend other tolling provisions to apply. See Tex.
Bus. & Com. Code Ann. § 24.010(a)(1) (extinguishing cause of action
four years after transfer or, if later, one year after transfer was or
reasonably could have been discovered), (c) (deferring time period for bringing
suit with respect to minors and persons of unsound mind); see also Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 198 (Tex. 2007) (stating
principal that, just as every word of statute must be presumed to have been
used purposefully, every word excluded from statute must be presumed to have
been excluded purposefully). 
Whittington implies that this construction is rigid and
draconian because he filed the Nevada lawsuit in good faith, the savings clause
only extends the time for filing “a mere 60 days,” and Nathan “had actual
notice” of his potential liability before the statute of repose expired due to
the Nevada suit. These are the kinds of equitable considerations that justify
section 16.064’s tolling of statutes of limitations. But a key distinction
between a statute of limitations and a statute of repose is that the former is
subject to equitable tolling while the latter is not. See Galbraith, 290 S.W.3d at 866, 868. A repose statute, by its
very nature, may create a hardship on a claimant whose cause of action is
extinguished upon a date certain even though the claimant is not at fault for
his failure to bring the cause of action before that date. For example, a
statute of repose may extinguish a cause of action before the claimant knew of
should have known of his claims. Id. at
866. This potential for hardship may be justified by the benefits of a statute
of repose: certainty—including a date certain on which individuals and
businesses may close the books on a transaction or event—and
predictability—including definitive periods of liability that may be used in
purchasing insurance and making other forward-looking arrangements—and, in the
case of a uniform act, uniformity across the states. See id. at 866, 868 (stating that statute
of repose eliminates “burden of indefinite potential liability created by
discovery rule”). This is the kind of balancing of interests that the
Legislature must make in adopting a statute of repose, rather than merely a
statute of limitations. 
Finally, Whittington argues that the failure to apply
section 16.064 to fraudulent transfer claims “would have perverse consequences”
because litigants would “have to file the same action in multiple jurisdictions
to preserve their claim in the event that one of the courts lacks jurisdiction.”
Whittington’s point goes to the inefficiency that section 16.064 is designed to
prevent. See In re United Servs. Auto. Ass’n, 307
S.W.3d 299, 304 (Tex. 2010). But balancing the interests in equity and judicial
economy advanced by section 16.064 of the CPRC against the interests in
certainty and uniformity advanced by section 24.010 of the
Fraudulent Transfer Act
falls squarely within the Legislature’s prerogative. A court must give full
force and effect to the Legislature’s decision to enact a statute of repose
rather than merely a statute of limitations for governing the time period in
which a fraudulent transfer action must be brought under Texas law. Because the
Legislature has expressly instructed us to construe section 24.010 of the
Fraudulent Transfer Act
“to effectuate its general purpose to make uniform the law with
respect to the subject of this chapter among states enacting it,” and different
statutes may have different savings provisions, we should reject the attempt to
engraft section 16.064’s savings clause into the Act to destroy that uniformity.
Tex.
Bus. & Com. Code Ann.
§ 24.012. Whittington has identified no contrary directive for interpretation
and application of section 16.064 of the CPRC.
Conclusion
Section 16.064 unambiguously applies to “the applicable
statute of limitations,” not statutes of repose, and a court may not resort to
statutory construction aids to alter the statute’s clear language. Moreover, in
light of the “finality” purpose of statutes of repose generally and the
“uniformity” purpose of the Fraudulent Transfer Act’s statute of repose
specifically, I reject Whittington’s argument that the statutory construction
aids, if available, would favor interpreting the phrase “statute of
limitations” in section 16.064 as meaning “statutes of limitations and repose.”
I therefore would hold, as the trial court did, that section 24.010 of the
Fraudulent Transfer Act
extinguished Whittington’s claim thereunder on the date that the statute of
repose expired and section 16.064 did not operate to revive that claim for a
sixty-day period after the Nevada court’s dismissal of Whittington’s earlier
suit. 
For these reasons, I respectfully dissent.
 
                                                                   Harvey
Brown
                                                                   Justice

 
Panel
consists of Justices Jennings, Sharp, and Brown.
Justice Brown, dissenting.




[1]           Whittington
argues that application of section 16.064’s savings clause “accords with the
purpose of the statutes of repose” because section 16.064 “cannot extend the
period of potential liability because it is only effectual if the first action
is filed within the time prescribed by the statute of repose and subsequently
dismissed based on jurisdiction.” I disagree. The application of 16.064 to this
case would allow Whittington to bring claims against Nathan after the date on
which section 24.010 vested in Nathan “a substantive right to be free from
liability.” Galbraith, 290 S.W.3d at 868. There is a conflict between Whittington’s
purported right under section 16.064 to commence a cause of action after the
expiration of the repose period and Nathan’s right to be free from liability
under section 24.010. While the Nevada action provided Nathan with notice of
the potential for a subsequent action in another forum, the potential for
future liability is exactly what section 24.010 attempts to limit and conform
from state to state. Cf. Aguilar v.
Trujillo, 162 S.W.3d 839 (Tex. App.—El Paso 2005, pet. denied) (holding
that nuisance claim arising out of same subject matter as pending action could
not be brought after expiration of statute of repose even though it would have
been permitted after expiration of statute of limitations under “relation back”
doctrine). 


[2]           Accord Moore v. Browning, 50 P.3d 852, 860 (Ariz. Ct. App.
2002) (rejecting same common law tolling rule under Arizona’s Uniform
Fraudulent Transfer Act); SASCO 1997 NI, L.L.C. v. Zudkewich, 767 A.2d 469 (N.J. 2001); Gulf
Ins. Co. v. Clark, 20 P.3d
780 (Mont. 2001); First Sw. Fin. Servs. v. Pulliam, 912 P.2d 828 (N.M. Ct. App. 1996); but see Cortez v. Vogt, 60 Cal. Rptr. 2d 841 (Cal. App. 4th Dist. 1997).


[3]           See also Limer v.
Lyman, 608 N.E.2d 918 (Ill. App. 4 Dist. 1993) (addressing interaction
between medical malpractice statute of repose and savings provision); Hinkle v. Henderson, 85 F.3d 298 (7th
Cir. 1996) (same, applying Illinois law). 


[4]           See also Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn. 1996)
(applying Tennessee’s statutory savings provision to its statutes of repose for
medical malpractice and products liability actions).


[5]           See, e.g., Peterson v. Hohm, 607 N.W.2d 8, 13 (S.D.
2000) (observing that South Dakota has not adopted savings statute for
situations when plaintiff filed prior suit in another jurisdiction that was
dismissed for lack for jurisdiction and declining to judicially create such
rule or to apply equitable tolling); Braaten v. Deere & Co., 569 N.W.2d 563, 565 (N.D. 1997)
(declining to reach issue of whether equitable tolling might be allowed when
second suit was filed after timely-filed suit was dismissed for lack of
jurisdiction); Galligan v. Westfield Ctr.
Serv., Inc., 412 A.2d 122, 127 (N.J. 1980) (Pollock, J., dissenting)
(noting that New Jersey has not adopted savings statute and dissenting from
judicial-creation of savings doctrine).


[6]           For
example, Kentucky has a similar savings provision but it addresses only actions
commenced in “any court of this state.” Ky. Rev. Stat. Ann. § 413.270. Colorado
has a savings provision that extends to both dismissal
for lack of jurisdiction and for improper venue. Colo. Rev. Stat. Ann. § 13-80-111. Georgia’s savings statute
extends to cases that are dismissed or discontinued by the plaintiff. Ga. Code Ann. § 9-2-61. Indiana allows
the re-filing of any action to be treated as a “continuation” of the previously
filed action if the prior action “failed” and the failure was not due to the
negligence of the plaintiff. Ind. Code
Ann. § 34-11-8-1. Arizona’s savings provision applies regardless of the
manner in which the prior action is terminated, though the tolling period is
judicially determined when the termination is the result of abatement, nonsuit,
or want of prosecution. Missouri’s savings statute does not apply to statutory
causes of action that contain their own statute of limitations. Hutcheson v. Elec. Data Access Tech.,
Inc., 327 S.W.3d 622, 625
(Mo. Ct. App. 2010).


[7]           For
example, section 16.064 tolls limitations for sixty days after dismissal of the
prior suit, while Kentucky’s and Colorado’s savings statutes toll limitations
for ninety days after dismissal of the prior suit. Ky. Rev. Stat. Ann. § 413.270; Colo. Rev. Stat. Ann. § 13-80-111. The Georgia and Arizona
savings statutes allow re-filing with six months; Ohio’s and Connecticut’s
savings statutes allows re-filing within one year; and Indiana’s statute allows
re-filing within three years. Ga. Code
Ann. § 9-2-61; Ariz. Rev. Stat. § 12-504(A); Ohio Rev. Code Ann. § 2305.19;
Conn. Gen. Stat. Ann. § 52-592; Ind. Code Ann. § 34-11-8-1.


[8]           Compare Tex. Civ. Prac. & Rem. Code Ann.
§ 16.064 (thirty days), with Ind. Code Ann. § 34-11-8-1 (three
years).


[9]           A
previous version of section 24.010 did not expressly provide for tolling based
on disability but, instead, incorporated section 16.001 of the CPRC, which
provides for tolling on the basis of disability under the same terms. See Acts 1987, 70th Leg., ch. 1004, § 1, 1987 Tex. Gen. Laws 3393 (West); Tex. Civ. Prac. & Rem. Code Ann.
§ 16.001. By eliminating the
reference to an external tolling provision and incorporating the same tolling
period within the text of the statute itself, the Legislature brought section
24.010 more in line with the Rankin
court’s observation that statutes of repose are “not subject to any exceptions,
except perhaps those clear exceptions in the statute itself.” Rankin, 307 S.W.3d at
286.


