517 S.W.3d 320
Tex. App.2017Background
- The Bastrop County Complex Fire (Sept. 2011) destroyed homes and prompted hundreds of suits against Asplundh alleging negligence, gross negligence, nuisance, and trespass. Hundreds of original plaintiffs and insurers sued; many original suits settled.
- A putative class action was filed on behalf of property owners seeking class certification for diminution-in-value damages (market-value loss to land/vegetation); the class petition alleged negligence and gross negligence (nuisance later dropped as a class claim).
- The court consolidated pretrial discovery of the original suits and the putative class case; Asplundh sought a common liability trial and moved for summary judgment asserting all subsequent individual suits were time-barred by the two-year property-damage statute of limitations (Tex. Civ. Prac. & Rem. Code §16.003).
- After the district court denied class certification (March 2015), several groups filed individual suits reasserting negligence/gross negligence and adding nuisance and trespass claims and broader damage requests.
- Asplundh moved for summary judgment as to limitations, arguing (1) American Pipe-style class-action tolling does not apply under Texas law (or only applies narrowly), and (2) if tolling applies it should not extend to causes of action or remedies not expressly pleaded in the class petition.
- The district court held the filing of the putative class tolled limitations for putative class members until denial of certification and that individual claims sharing a common factual and legal nexus with the class claims (including nuisance and trespass here) were tolled; this permissive interlocutory appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas recognizes American Pipe–style tolling for putative class members while certification pending | Tolling applies; the putative class filing tolled limitations until denial of certification, so individual suits filed after denial were timely | Tolling is a federal doctrine not adopted by Texas Supreme Court; legislature did not authorize broad class-action tolling and statutes show tolling only where provided | Court: Texas appellate precedent and equitable principles support American Pipe–style tolling for Texas class actions; tolling applies here until certification denial (affirmed) |
| Whether tolling requires actual class certification (i.e., applies only upon decertification) | Tolling operates from filing of putative class until certification is denied (so applies even if class never certified) | Tolling should apply only where a class was certified and later decertified | Court: Tolling suspends limitations from filing of putative class until certification denial; does not require prior certification |
| Whether tolling extends to claims and remedies not expressly pleaded in the class petition (scope of tolled claims) | Claims and remedies that share common factual basis/legal nexus with class claims are tolled; defendant had notice and should preserve evidence; nuisance/trespass here arise from same acts | Tolling should be limited to causes/remedies expressly pleaded in the class petition; additional claims/damages unfairly surprise defendant | Court: Tolling covers subsequent claims that are substantially similar/share common factual basis and legal nexus so defendant had notice; nuisance and trespass (and attendant damages) here tolled |
| Whether tolling unjustly prejudices defendant’s ability to defend on new damages theories | Plaintiffs: no undue prejudice; defendant was on notice during consolidated proceedings and discovery | Asplundh: addition of new damage categories meant insufficient discovery and prejudice | Court: No showing of prejudice to defense of liability elements; tolling permitted; preserves defendants’ notice-based protections |
Key Cases Cited
- American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (U.S. 1974) (commencement of a class action tolls statute of limitations for putative class members while certification pending)
- Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (U.S. 1983) (American Pipe tolling applies to individual suits filed after class denial and limits on adding claims discussed)
- Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (U.S. 1975) (tolling limited where prior filing involved a different, independent remedy; discusses identity of causes requirement)
- Valdez v. Hollenbeck, 465 S.W.3d 217 (Tex. 2015) (recognizes judicially created tolling doctrines and distinguishes statutes of repose)
- Clark v. ConocoPhillips Co., 465 S.W.3d 720 (Tex. App.—Houston [1st Dist.] 2015) (state appellate decision applying American Pipe–style tolling under Texas law)
- Bara v. Major Funding Corp. Liquidating Trust, 876 S.W.2d 469 (Tex. App.—Austin 1994) (applies tolling principles to de facto class-like suits and allows related new claims)
- Grant v. Austin Bridge Constr. Co., 725 S.W.2d 366 (Tex. App.—Houston [14th Dist.] 1987) (filing of putative class suspends limitations for putative members until certification denial)