The Court issued one revised opinion and granted two new petitions for review in this week’s order list.
Revised Opinion
The revised opinion was in Kerlin v. Concepcion Sauceda, No. 05-0653, issued on August 29th (the Court’s big end-of-term order list).
Interestingly, this revised opinion was issued without any pending motion for rehearing. The Court’s original decision did prompt an amicus curiae brief from the State of Texas (filed on September 15th). But there was no formal request from a party for a different outcome or any changes in the opinion.
The new opinion makes one substantive change. The case involved whether a statute of limitations is tolled while a defendant is physically out of the state. The question was how Texas’s longarm statute affects that tolling — if a defendant could be sued under the longarm statute, is there a need to toll limitations?
The sentence summarizing the Court’s conclusion used to read:
But if a nonresident’s contacts with the state are sufficient to afford personal jurisdiction, as it is undisputed Kerlin’s were, then we can discern no reason why a nonresident’s “presence” in this state would not be established for purposes of the tolling statute.
In the new opinion it reads:
But if a nonresident
‘sis amenable to service of process under the longarm statute and has contacts with the statearesufficient to afford personal jurisdiction, as was the case withit is undisputedKerlin‘s were, then we can discern no reason why a nonresident’s “presence” in this state would not be established for purposes of the tolling statute.
The Court has thus made clear that, if Texas’s longarm statute does not reach a particular defendant, the tolling argument may still be available.
2 responses so far ↓
1 D. Todd Smith // Oct 10, 2008 at 10:27 am
Supports your observation that the end-of-term push leads to more mistakes requiring correction later, doesn’t it? Though, as you point out, it’s somewhat odd that these changes came without a motion for rehearing.
2 Don Cruse // Oct 10, 2008 at 10:41 am
You’re right that the thought crossed my mind. But, on reflection, I don’t think this case really supports it.
This was a pretty subtle change. And my suspicion is that the Kerlin revised opinion is what the Court meant to say all along. (The revision is certainly more consistent with the concluding paragraph, which talks about the longarm statute.)
What this case does illustrate is how cases in the Texas Supreme Court can be of great importance to litigants handling cases in other courts, such as the Fifth Circuit.