Affirm and Opinion Filed June 7, 2013




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-11-01209-CV

                                 FRANK LIPTAK, Appellant
                                          V.
                                 MEGAN BRUNSON, Appellee

                       On Appeal from the 416th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 416-02919-2010

                                          OPINION
                          Before Justices Bridges, O’Neill and Murphy
                                   Opinion by Justice Bridges
       Frank Liptak, a Florida resident, appeals the trial court’s summary judgment in favor of

Megan Brunson on the ground Liptak’s personal injury suit was barred by limitations. In two

issues, Liptak argues the statute of limitations in this case was tolled under section 16.063 of the

Texas Civil Practice and Remedies Code, and the Texas long-arm statute does not apply. We

affirm the trial court’s judgment.

       On July 11, 2008, Liptak was stopped at a red light near the intersection of Preston Road

and Rolater Road in Frisco, Texas. Liptak was struck from behind by a car that was first struck

by Brunson. Liptak was injured as a result. On July 13, 2010, Liptak filed suit against Brunson

asserting a negligence claim and seeking damages for injuries he sustained in the accident.

Citation issued on August 9, 2010, and the record contains the sheriff’s return indicating Brunson
was served on August 28, 2010. On September 20, 2010, Brunson filed a general denial, and on

March 8, 2011, an amended answer asserting Liptak’s cause of action was barred by the

applicable statute of limitations. On April 11, 2011, Brunson filed a traditional motion for

summary judgment on the ground that Liptak’s claim was barred by the two-year statute of

limitations. In response to Brunson’s motion for summary judgment, Liptak took Brunson’s

deposition on May 25, 2011 and, that same day, filed an amended petition asserting section

16.063 of the civil practice and remedies code tolled the statute of limitations due to Brunson’s

absences from Texas totaling approximately seventeen days.

       In a June 3, 2011 response to Brunson’s motion for summary judgment, Liptak asserted

Brunson stated in her May 25, 2011 deposition that she held a national position with the

American Association of Critical Care Nurses. As a part of the organization, she traveled out of

state once a year for leadership training. Brunson spent five days at a national conference in

Washington D.C. in 2010 and two days at a national conference in New Orleans in 2009. In

addition, Brunson left the state for four or five days in 2009 to visit her parents in St. Louis.   In

her June 13, 2011 reply, Brunson argued section 16.063 was not intended to apply each time a

Texas resident left the state’s boundaries for vacation or a business trip; thus, she asserted that

her absences from Texas did not toll the statute of limitations because she never ceased to be a

Texas resident and was at all times amenable to the jurisdiction of Texas courts. There was no

evidence that Liptak would have been unable to serve his petition within the statute of limitations

or that he was aware of a single day Brunson was absent from the state. The trial court granted

summary judgment in favor of Brunson, and this appeal followed.

       In two issues, Liptak argues section 16.063 of the civil practice and remedies code was

meant to extend the statute of limitations with no exceptions and tolled the statute of limitations




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in this case. Further, he argues the long-arm statute does not apply in this case; therefore, the

legal authorities appellee relies on do not apply.

       In a traditional motion for summary judgment, the movant has the burden of showing that

there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). To

demonstrate her entitlement to summary judgment, a defendant must conclusively negate at least

one essential element of each of plaintiff’s causes of action or conclusively establish each

element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.

1997). Evidence is conclusive only if reasonable people could not differ in their conclusions.

City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once the defendant establishes her

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. City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671, 678-79 (Tex. 1979).

       The dispositive issue in this appeal is whether section 16.063 of the civil practice and

remedies code tolls the statute of limitations against a Texas resident for each day that the

resident is beyond our state’s borders. Section 16.063 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.” TEX. CIV. PRAC. & REM.

CODE ANN. § 16.063 (West 2008). “Section 16.063 was written and intended to protect domestic

creditors from individuals who enter Texas, contract a debt, depart, and then default on the debt.”

Ayres v. Henderson, 9 Tex. 539 (1853) (explaining object of section was for protection of

domestic creditors and was intended to protect creditors from inconvenience and loss to which

they would be exposed by absence of their debtors and consequent immunity of debtors from




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process and judgment); Ware v. Everest Group, Inc., 238 S.W.3d 855, 865 (Tex. App.—Dallas

2007, pet. denied) (quoting Howard v. Fiesta Tex. Show Park, Inc., 980 S.W.2d 716, 722 (Tex.

App.—San Antonio 1998, pet. denied)); see also Ahrenhold v. Sanchez, 229 S.W.3d 541, 544

(Tex. App.—Dallas 2007, no pet.) (“The purpose of section 16.063 is to protect domestic

creditors.”); Harris v. Columbia Broad. Sys., Inc., 405 S.W.2d 613, 617 (Tex. App.—Austin

1966, writ ref’d n.r.e.) (explaining object of limitation statute [now this section] is protection of

domestic creditors).

       Relying on Ware and Ahrenhold, Liptak argues section 16.063 applies to Brunson’s

absences from Texas while on vacation and business trips. Our reading of these cases, however,

does not support his position.

       In Ware, the case involved an enforcement action against Ware based on domestication

of a foreign judgment. Ware, 238 S.W.3d at 866. The record did not show that Ware contracted

a debt in Texas and then left the state. Id. Because the facts of the case differed from the fact

situation section 16.063 was intended to address, a panel of this Court concluded application of

section 16.063 was not warranted. Id. Thus, in the absence of a creditor/debtor relationship,

section 16.063 does not apply. See id.

       In contrast, Ahrenhold involved a debtor who executed a support and maintenance

agreement in Texas, defaulted on his payment obligations under the agreement while residing in

Texas, moved out of Texas about one year after he stopped making payments, and never

returned. Ahrenhold, 229 S.W.3d at 543-44. After noting that the “purpose of section 16.063 is

to protect domestic creditors,” a panel of this Court concluded Ahrenhold, a domestic creditor,

fell “squarely within the category of persons the statute [section 16.063] is designed to protect.”

Id. at 544. Further, the defendant in Ahrenhold was “precisely the type of defendant to which the




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statute applies.” Id. The defendant resided in Texas when the agreement was executed and

when he defaulted on the payments, and he left the state and never returned before the statute of

limitations had run. Id. Accordingly, the Court determined the trial court erred in refusing to toll

the statute of limitations under section 16.063. Id.; see also Wyatt v. Lowrance, 900 S.W.2d 360,

362 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (tolling limitations under section

16.063 where Texas resident contracted an obligation in Texas then moved out of Texas before

the debt could be collected). Thus, section 16.063 does apply to creditors and debtors who incur

a debt in Texas and move out of state before the applicable statute of limitations has run. See id.

       As additional support, Liptak cites Stone v. Phillips, 176 S.W.2d 932, 933 (Tex. 1944),

and Cadle v. Jenkins, 266 S.W.3d 4, 7 (Tex. App.—Dallas 2008, no pet.). In Stone, the

defendant had her domicile in Texas at the time the obligation sued on, a debt evidenced by a

promissory note, was entered into; she was absent when the final installment matured; and she

remained absent until just before suit was filed against her. Stone, 176 S.W.2d at 934 (applying

former statute, Article 5537). The court cited Ayres for the proposition that the object of the

statute was to protect domestic creditors from the inconvenience and loss to which they would be

exposed by the absence of debtors and consequent immunity of their debtors from process and

judgment. Id. The court concluded Ayres was directly on point because, in Ayres, the debtor

was in the state when the obligation accrued – when the note was executed – and absent from the

state when the debt matured and the right to bring the suit accrued. Id. Accordingly, the court in

Stone tolled the statute of limitations. Id. In Cadle, a panel of this Court concluded section

16.063 did not apply in a case where the ten-year period in which to obtain a writ of execution on

a judgment under section 34.001 of the civil practice and remedies code controlled. Cadle, 266




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S.W.3d at 7. Thus, Stone also addressed a debtor/creditor situation, and Cadle held section

16.063 did not apply.

        The meaning of section 16.063 was best explained in Zavadil v. Safeco Insurance

Company of Illinois, 309 S.W.3d 593, 595-96 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied), a case with strikingly similar facts. There, the defendant was a Texas resident at the time

of the underlying automobile accident, and she remained a Texas resident from the time of the

accident until she was served more than two years later. It was undisputed that Zavadil was at all

times amenable to service. Id. However, the defendant stipulated she spent “at least fourteen

days” outside Texas during the two-year period following the accident. Applying Ashley v.

Hawkins, 293 S.W.3d 175, 177 (Tex. 2009), and Kerlin v. Sauceda, 263 S.W.3d 920, 922-28

(Tex. 2008), the Houston court concluded Zavadil was not “absent” from Texas for the purposes

of section 16.063, and section 16.063 did not toll the limitations period. Zavadil, 309 S.W.3d at

596. Further, the court concluded a Texas resident’s brief intermittent excursions outside 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 exercise of in

personam jurisdiction.” Id. (quoting J.M.R. v. A.M., 683 S.W.2d 552, 557 (Tex. App.—Fort

Worth 1985, writ ref’d n.r.e.)).

        Liptak argues the trial court erred in relying on Zavadil and argues Zavadil does not

apply in this case. Liptak asserts Zavadil is “off point” because it relies on Ashley and Kerlin,

both of which dealt with out-of-state defendants. Liptak appears to argue that Zavadil relied on

cases in which defendants were amenable to service under the long-arm statute and does not

apply in this case involving a Texas resident defendant. In Kerlin, the defendant did not reside in

Texas, was not present in Texas at the time the cause of action arose, and citation was obtained




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pursuant to the Texas long-arm statute. Kerlin, 263 S.W.3d at 922-24. The Texas Supreme

Court stated, “[I]f a nonresident is amenable to service of process under the long-arm 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. Thus, the statute of limitations in Kerlin was not tolled because,

under the general long-arm statute, Kerlin was present in the state. Id. at 928.

       In Ashley, the parties to an automobile collision were Texas residents at the time of the

collision. The defendant in Ashley subsequently moved to another state and was served under

the long-arm statute. Ashley, 293 S.W.3d at 177. The Texas Supreme Court 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 long-arm statute, as long as the defendant has ‘contacts with the state

sufficient to afford personal jurisdiction.’” Id. at 179. Under Ashley, if Brunson had moved out

of Texas for the time she was out of state, the law is clear that the statute of limitations in this

case would not have been tolled. See id. The court in Zavadil concluded the reasoning in Kerlin

and Ashley applied with even greater force where the defendant had never ceased to be a Texas

resident since the cause of action accrued. Zavadil, 309 S.W.3d at 596.

       This is exactly the case we have here. Brunson remained a Texas resident during the

entire time between the underlying car accident and Liptak’s lawsuit filed after the two-year

statute of limitations had expired. Liptak was not prevented from filing the lawsuit against

Brunson within the limitations period by any “absence” of Brunson’s. Further, there is nothing

in the record to show Liptak encountered any difficulty in serving Brunson with process after the

lawsuit was filed. Under these circumstances, we decline to conclude Zavadil does not apply to

the facts of this case merely because of its reliance on Kerlin and Ashley, both of which involved




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application of the long-arm statute. To do so would give greater protection to out-of-state

residents than it would to Texas residents.

       The dissent contends our reading of section 16.063 has “rendered the statute meaningless

and effectively repealed the statute.” To the contrary, our reading of section 16.063 is consistent

with legal authority applying section 16.063 to situations involving the category of persons it

was designed to protect: Texas creditors faced with individuals who enter Texas, contract a debt,

depart, and then default on the debt. See Ware, 238 S.W.3d at 865; Ahrenhold, 229 S.W.3d at

543-44. Significantly, our application of section 16.063 is consistent with its intent to protect

Texas creditors from outsiders, not Texas residents who remain Texas residents during the entire

period of the applicable statute of limitations. See Ware, 238 S.W.3d at 865.

       In fact, the record shows Liptak was not aware Brunson had been absent from Texas

during the limitations period until taking Brunson’s deposition after Liptak’s suit was filed late.

Accordingly, we conclude Brunson’s “brief intermittent excursions” outside of Texas did not toll

the statute of limitations in this case. See Zavadil, 309 S.W.3d at 596. The trial court therefore

did not err in granting summary judgment in favor of Brunson. See TEX. R. CIV. P. 166a (c);

Grinnell, 951 S.W.2d at 425. We overrule Liptak’s issues.

       We affirm the trial court’s judgment.




Murphy, J., dissenting
                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE

111209F.P05



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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                         JUDGMENT

FRANK LIPTAK, Appellant                             On Appeal from the 416th Judicial District
                                                    Court, Collin County, Texas
No. 05-11-01209-CV         V.                       Trial Court Cause No. 416-02919-2010.
                                                    Opinion delivered by Justice Bridges.
MEGAN BRUNSON, Appellee                             Justices O’Neill and Murphy participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Megan Brunson recover her costs of this appeal from
appellant Frank Liptak.


Judgment entered June 7, 2013




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




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