noting that statutory tolling does not apply if the causes of action in the suits are not the same or if first suit was not dismissed for want of jurisdiction
How later courts described this case
- noting that statutory tolling does not apply if the causes of action in the suits are not the same or if first suit was not dismissed for want of jurisdiction
- presuming prior court dismissed “for lack of jurisdiction” and focusing instead on whether second suit was “the same” action as the first
- looking beyond a literal reading of “the same action”
Written by the judges who cited it.
Distinguished
Distinguished by Brown v. Fullenweider, 135 S.W.3d 340 (2004)
While the Smith and Turner opinions offer guidance, each is distinguishable from the case before us.
The opinion
ON MOTION FOR REHEARING
To his motion for rehearing, Larry Turner attaches the First Amended Complaint he filed in federal court, seeking to demonstrate that he did append his state court claims to his federal causes of action. This amended complaint was not presented to the trial court at the summary judgment proceeding and is not part of the record on appeal. Its attachment to the motion for rehearing comes too late to support appellant’s reliance on the tolling provisions of section 16.064(a) to defeat movants’ request for summary judgment based on the statute of limitations. We overrule the motion for rehearing and adhere to our original opinion in its entirety.