Opinion
Civil Action No. 02-1298-JTM
January 13, 2003
MEMORANDUM AND ORDER
This matter comes before the court on Defendant's motion to dismiss (Dkt. No. 8). Defendant argues that Plaintiffs are time barred from filing suit because the applicable statute of limitations has expired. Defendant also argues that Plaintiffs have already litigated this issue in Texas and they are now estopped from relitigating this issue in Kansas. Plaintiffs have filed a timely response and surreply as ordered by the court. Thus, the motion is fully briefed and ripe for determination. For the reasons set forth below, the court grants Defendant's motion to dismiss.
I. Factual Background
Plaintiffs' suit is for personal injuries occurring on or about July 19, 1999. The accident causing Plaintiff Samuel Garcia's personal injuries occurred in the state of Texas. Plaintiffs initially filed suit against International Elevator in Texas, but International Elevator made a special appearance and attacked jurisdiction. On May 9, 2002, the Court of Appeals of the First District of Texas entered a Judgment reversing the trial court and dismissing International Elevator without prejudice. The Court of Appeals of denied rehearing of the Plaintiffs' case on May 30, 2002. Plaintiffs' Original Complaint is filed-stamped as having been received by this Court on August 22, 2002.
II. Discussion
Plaintiffs' suit is based on Plaintiff Samuel Garcia's personal injuries which he sustained in Texas. The Texas statute of limitations for personal injury actions is two years. TEX.CIV.PRAC.REM. CODE § 16.003 (Vernon 2002). However, Texas has a "savings statute," § 16.064, which applies to cases that are dismissed for lack of jurisdiction. In this event, the statute provides that plaintiffs have up to 60 days to commence an action in another jurisdiction. § 16.064 suspends the statute of limitations if "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." TEX.CIV.PRAC.REM. CODE § 16.064(a)(2) (Vernon 1997).
The Defendant contends that Plaintiffs did not file suit in this court until August 22, 2002; 84 days after the Texas Court of Appeals denied rehearing of the Plaintiffs' case. Thus, the Defendant argues that Plaintiffs did not file this action within the time allowed by § 16.064. The Plaintiffs argue that the judgment in question did not become final until either the appellate court's or the Texas Supreme court's power to alter the judgment ended. Based on TEX.R.APP.P. 19.1(b)(2), the Plaintiffs contend that the appellate court had plenary power to alter the judgment August 28, 2002. Furthermore, based on TEX.R.APP.P. 53.7(a)(2), the Plaintiffs argue that the supreme court "had the power to alter the judgment until July 14, 2002, which was the deadline for the Garcias to file their petition for review."
§ 16.064 does not define when a judgment becomes final for the purposes of the "savings statute," and Texas courts have yet to consider precisely this issue. However, generally, "a judgment or order is final if it disposes of every pending claim and party." Fisher v. P.M. Clinton Intern. Investigations, 81 S.W.3d 484, 485 (Tex.Civ.App. 2002) (citations omitted). Courts consistently apply this definition, when determining whether a judgment is final for the purposes of appeal processes. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
The Plaintiffs correctly cite McWilliams for the proposition that "the term `final judgment' applies differently in different contexts." McWilliams v. McWilliams, 531 S.W.2d 392, 393-394 (Tex.Civ.App. 1975). However, the Court does not find that McWilliams provides a particularly strong argument in favor of the Plaintiffs' case. McWilliams involved a suit brought by the appellant against his former wife in an attempt to recover mortgage payments he made on the couple's farm during the appeal of a divorce decree. Id. at 393. The wife was awarded possession of the farm in the divorce decree. Id. The McWilliams Court considered the trial court's conclusion that the divorce decree did not become final until there was a writ of error to the Texas Supreme Court from a decision affirming the divorce decree. Id. The McWilliams Court disagreed with the trial court and declined to find that as a matter of law the judgment was not final until the appeal had been exhausted. Id. at 394. In doing so, the McWilliams Court includes a discussion on the fact the term final judgment can mean different things and ultimately remands the cause for trial. Id. at 393-94. Thus, McWilliams does not seem to strongly support the Plaintiffs' argument that their judgment did not become final until the time period in which they could file an appeal was completed. The Plaintiffs do not provide any authority, nor can the Court find any authority, this should be the case.
Based on the aforementioned, the Court sees no reason to depart from the general rule that "a judgment or order is final if it disposes of every pending claim and party." The Court of Appeals denied rehearing of the Plaintiffs' case on May 30, 2002. The Court of Appeals' order disposed of every pending claim and party. At this point, the Plaintiffs decided to pursue their case in federal court. § 16.064 provided the Plaintiffs with up to 60 days to commence an action in another jurisdiction The Plaintiffs filed suit 84 days after the Court of Appeals' order. Accordingly, their claim is not preserved by the "savings statute."
As the Court finds that the Plaintiffs are time barred from filing suit, it is not necessary to consider the parties' arguments concerning collateral estoppel and res judicata.
IT IS, THEREFORE, BY THE COURT, ORDERED this 13th day of January, 2003 that the Defendant's motion to dismiss (Dkt. No. 8) is granted.