Stephen Whittington v. Marc H. Nathan

371 S.W.3d 399, 2012 Tex. App. LEXIS 2855, 2012 WL 1230273
CourtCourt of Appeals of Texas
DecidedApril 12, 2012
Docket01-10-00971-CV
StatusPublished
Cited by1 cases

This text of 371 S.W.3d 399 (Stephen Whittington v. Marc H. Nathan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stephen Whittington v. Marc H. Nathan, 371 S.W.3d 399, 2012 Tex. App. LEXIS 2855, 2012 WL 1230273 (Tex. Ct. App. 2012).

Opinions

OPINION

TERRY JENNINGS, Justice.

Appellant, Stephen Whittington, challenges the trial court’s rendition of summary judgment in favor of appellee, Marc H. Nathan, in Whittington’s suit against Nathan for violations of the Uniform Fraudulent Transfer Act (“UFTA”).1 In his sole issue, Whittington contends that the trial court erred in granting Nathan summary judgment on the ground that Whittington had not timely filed his UFTA action under its four-year statute of repose.2

We reverse and remand.

Background

In June 2006, Whittington obtained a $3.2 million judgment against his former business associate, Evan Baergen, in a Nevada court. Unable to collect on his judgment, Whittington, in May 2008, brought his UFTA action against Baergen and Nathan in a Nevada court, seeking to recover assets that Baergen had allegedly fraudulently transferred to Nathan. It is undisputed that Whittington asserted his UFTA claims in Nevada within UFTA’s four-year statute of repose. However, the Nevada court ultimately dismissed Whittington’s UFTA action for lack of personal jurisdiction. And Whittington, within sixty days of this dismissal, filed the instant suit against Nathan for violations of UFTA based upon the same allegations that he had made in the Nevada action.

Nathan sought summary judgment on the ground that a cause of action under UFTA is extinguished unless it is brought within the prescribed period — here, four years.3 In his response, Whittington argued that he had timely brought the instant UFTA action because he had originally filed the action in Nevada before the expiration of the four-year statute of re[401]*401pose and he had, in accord with the applicable “savings statute” in the Texas Civil Practice and Remedies Code,4 filed the UFTA action in Texas within 60 days of the Nevada court’s dismissal.

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of proving that he is entitled to judgment as a matter of law and there is no genuine issue of material fact. Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, he must either (1) disprove at least one essential element of the plaintiffs cause of action or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiffs cause of action. Cathey, 900 S.W.2d at 341. When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in his favor. Id. at 549.

We review the trial court’s interpretation of a statute de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000).

Suspension of Statutes of Limitations and Repose

In his sole issue, "Whittington argues that the trial court erred in granting Nathan summary judgment because he timely filed the instant UFTA action in Texas within 60 days of the Nevada court’s dismissal, for lack of personal jurisdiction, of his same claims against Nathan. See Tex. Civ. Prac. & Rem.Code Ann. § 16.064 (Vernon 2008). Thus, he concludes that UFTA’s four-year statute of repose did not extinguish his claims.

Section 16.064, entitled “Effect of Lack of Jurisdiction,” provides that the period between the date of filing an action in one court and “the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period” if:

(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and
(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.

Id. § 16.064(a). The “remedial purpose” of section 16.064 is to provide relief “to one who has mistakenly brought his action in the wrong court.” Clary Corp. v. Smith, 949 S.W.2d 452, 461 (Tex.App.-Fort Worth 1997, writ denied) (citation omitted).

Here, Whittington, timely, within UFTA’s four-year statute of repose, sued Nathan in a Nevada court for violations of UFTA, but the Nevada district court dismissed the action for lack of personal jurisdiction. "Whittington then, within 60 days of the dismissal, in compliance with section 16.064, made his second filing of the same UFTA action in the trial court below. Nevertheless, the trial court, apparently concluding that "Whittington cannot rely upon section 16.064 to suspend the running of UFTA’s statute of “repose” be[402]*402cause it is not a statute of “limitation,” granted Nathan summary judgment on the ground that Whittington had untimely filed his UFTA action in Texas.

Nathan’s argument that section 16.064 does not apply in the instant case to suspend the running of UFTA’s statute of repose is based, in large part, upon his interpretation of the Texas Supreme Court’s opinion in Galbraith Engineering Consultants v. Pochucha, 290 S.W.3d 863 (Tex.2009). In Galbraith, the supreme court concluded that the Texas Legislature did not intend for former Texas Civil Practice and Remedies Code section 33.004(e),5 which concerns the effect of the timely joinder of designated responsible third parties on statutes of limitations, “to revive a claim otherwise barred by a statute of repose, as distinguished from a statute of limitations.” Id. at 864. Although the court recognized that the legislature has grouped statutes of repose and limitations together in chapter 16 of the Civil Practice and Remedies Code, it noted that “there are significant differences between the two.” Id. at 866. After noting that “[sjtatutes of repose are created by the Legislature, and the Legislature may, of course, amend them or make exceptions to them,” the court framed the issue before it as “whether the Legislature intended to make such an exception when it enacted section 33.004(e) as part of its proportionate responsibility scheme, that is, did the Legislature intend for the revival statute to operate as a general exception to periods of repose.” Id. at 867.

The court’s conclusion in Galbraith, limited to the effect of section 33.004(e) on statutes of repose, does not mean that section 16.064, which is expressly entitled, “Effect of Lack of Jurisdiction,” does not apply to “statutes of repose.” See id. at 867 & n.

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Related

Marc H. Nathan v. Stephen Whittington
408 S.W.3d 870 (Texas Supreme Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
371 S.W.3d 399, 2012 Tex. App. LEXIS 2855, 2012 WL 1230273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephen-whittington-v-marc-h-nathan-texapp-2012.