Stephen Whittington v. Marc H. Nathan
371 S.W.3d 399
Tex. App.2012Background
- Whittington obtained a $3.2 million Nevada judgment in 2006 against Baergen.
- Whittington filed a Nevada UFTA action in May 2008 against Baergen and Nathan seeking transfers he alleged were fraudulent.
- Nevada court dismissed for lack of personal jurisdiction.
- Within 60 days after dismissal, Whittington filed the same UFTA action in Texas seeking the same relief.
- Nathan moved for summary judgment on the theory that UFTA’s four-year repose extinguished the claim.
- Whittington argued the Texas savings statute (CPRC §16.064) tolled the repose by permitting a second filing in Texas within 60 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §16.064 tolls the UFTA repose. | Whittington relies on §16.064 to suspend repose. | Nathan argues §16.064 only tolls limitations, not repose. | The court held §16.064 does not toll repose (reversed and remanded). |
Key Cases Cited
- Clary Corp. v. Smith, 949 S.W.2d 452 (Tex.App.-Fort Worth 1997) (remedial purpose of §16.064 to permit second filing in proper court)
- Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009) (savings statutes do not revive statutes of repose; §16.064 not to extend repose per se)
- Rankin v. Rankin, 307 S.W.3d 283 (Tex.2010) (statute of repose vs. limitations; discovery rules not applicable to repose)
- Cadle Co. v. Wilson, 136 S.W.3d 345 (Tex.App.-Austin 2004) (section 24.010 is an extinguishment; not simply a tolling device)
- Duran v. Henderson, 71 S.W.3d 833 (Tex.App.-Texarkana 2002) (treats §24.010 as statute of repose; distinguishes from limitations)