Lee Marvin Sanders and Matthew Sodrok v. the Boeing Company, Kidde Technologies, Inc., and Jamco America, Inc.

Supreme Court of Texas

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No. 23-0388

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Lee Marvin Sanders and Matthew Sodrok,

Appellants,

v.

The Boeing Company, Kidde Technologies, Inc., and Jamco

America, Inc.,

Appellees

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On Certified Questions from the

United States Court of Appeals for the Fifth Circuit

═══════════════════════════════════════

Argued September 12, 2023

JUSTICE BOYD delivered the opinion of the Court.

The Texas Civil Practice and Remedies Code requires claimants

to “bring suit” by particular deadlines but also provides exceptions that

extend or suspend those limitations periods. See, e.g., TEX. CIV. PRAC. &

REM. CODE § 16.003(a) (providing a two-year period to “bring suit” for

personal injury). One such exception, set forth in Section 16.064,

“suspends the running of the applicable statute of limitations for the

period” from “the date of filing an action in a trial court” until “the date

of a second filing of the same action in a different court,” but only if

(1) “because of lack of jurisdiction in the trial court where the action was

first filed, the action is dismissed or the judgment is set aside or

annulled in a direct proceeding,” and (2) “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.” Id. § 16.064(a).

The United States Court of Appeals for the Fifth Circuit has

certified two questions to this Court regarding the construction of

Section 16.064(a). 1 First, does the section apply when, as here, the prior

court dismissed the action because of lack of jurisdiction but the court

would have had jurisdiction if the claimants had properly pleaded the

jurisdictional facts? And second, did these claimants file the subsequent

action within sixty days after the dismissal became final? Sanders v.

Boeing Co., 68 F.4th 977, 984 (5th Cir. 2023). We answer Yes to both

questions. Applying the statute’s plain language, we conclude Section

16.064(a) applies in this case because (1) even if the prior court could

have had jurisdiction, it nevertheless dismissed the action “because of

lack of jurisdiction,” and (2) the claimants filed this action within sixty

days after they exhausted their appeal from the dismissal and the

appellate court’s power to alter the judgment ended, which is when the

dismissal became “final.”

1 See TEX . CONST. art. V, § 3-c(a) (“The supreme court [has] jurisdiction

to answer questions of state law certified from a federal appellate court.”); TEX.

R. APP. P. 58.1 (“The Supreme Court of Texas may answer questions of law

certified to it by any federal appellate court if the certifying court is presented

with determinative questions of Texas law having no controlling Supreme

Court precedent.”).

2

I.

Background

Lee Marvin Sanders and Matthew Sodrok both work as flight

attendants for a major airline. They allege they were injured in January

2017 when a smoke detector on a flight they were working

malfunctioned and emitted an alarm so loud it burst their ear drums

and caused permanent hearing loss. They initially filed suit against The

Boeing Company in a federal district court in Houston but quickly

dismissed that action without serving process on any defendant. They

then refiled their claims, still before the applicable two-year limitations

period expired, in a federal district court in Dallas. The parties engaged

in discovery for over a year, and the flight attendants amended their

complaint to name Boeing, Kidde Technologies, and Jamco America as

defendants (collectively, Boeing).

A year and a half after the limitations period expired, the Dallas

district court entered an order concluding the flight attendants failed to

adequately plead a basis for diversity jurisdiction in federal court or for

venue in Dallas. 2 Boeing did not challenge the court’s jurisdiction or

move for the entry of such an order; instead, the Dallas district court

raised the issue sua sponte. The order required the flight attendants to

2 Regarding jurisdiction, the order explained that the flight attendants

failed to plead the location of their own citizenship because they pleaded only

that they “reside” in Texas and did not state where they are “domiciled” and

failed to plead the location of the defendants’ citizenship because they did not

allege their states of incorporation or principal places of business. Sanders v.

Boeing Co., No. 3:18-CV-03165-X, 2020 WL 13866580, at *1 (N.D. Tex. July 21,

2020).

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file an amended complaint addressing those deficiencies within seven

days.

The flight attendants filed a third amended complaint seven days

later. But in response, the Dallas district court entered another order—

again acting sua sponte—concluding that the new complaint still failed

to adequately plead diversity of citizenship. The court therefore

dismissed the complaint without prejudice for lack of jurisdiction under

Federal Rule of Civil Procedure 12(h)(3) and for failure to comply with a

court order under Federal Rule of Civil Procedure 41(b). Sanders v.

Boeing Co., No. 3:18-CV-03165-X, 2020 WL 5100788, at *1 (N.D. Tex.

Aug. 6, 2020), aff’d, No. 20-10882, 2021 WL 3412509 (5th Cir. Aug. 4,

2021). The flight attendants promptly filed motions to reinstate the case

and for leave to file a fourth amended complaint, asserting they had

“mistakenly and inadvertently misunderstood” the court’s initial order.

While those motions were pending, the claimants also filed a premature

notice of appeal to the Fifth Circuit.

After holding a hearing, the Dallas district court denied both

motions, concluding that the flight attendants “did not comply with the

Court’s order on properly pleading jurisdiction despite specific

instructions to do so.” Sanders v. Boeing Co., No. 3:18-CV-03165-X, 2020

WL 13490845, at *2 (N.D. Tex. Sept. 30, 2020). The Fifth Circuit

affirmed the dismissal a year later on August 4, 2021, concluding the

district court “did not err in dismissing Plaintiffs’ claims under Rule

12(h)(3)” for lack of subject-matter jurisdiction because “Plaintiffs’

jurisdictional allegations remained insufficient.” Sanders v. Boeing Co.,

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No. 20-10882, 2021 WL 3412509, at *3 (5th Cir. Aug. 4, 2021). 3 The Fifth

Circuit denied the claimants’ rehearing motion on September 13, 2021,

and issued its mandate on September 21.

On November 10, 2021—nearly three years after the two-year

limitations period expired and ninety-eight days after the Fifth Circuit

issued its opinion and judgment, but less than sixty days after the Fifth

Circuit denied the rehearing motion and issued its mandate—the flight

attendants refiled their claims in state court. Boeing then promptly

removed the case to the federal district court in Houston, asserting (as

the flight attendants had asserted in the Dallas district court) that the

federal court had jurisdiction based on diversity of citizenship. Boeing,

in fact, had never disputed diversity of citizenship and agrees with the

flight attendants that such diversity existed all along.

A month after removing the case to federal court, Boeing moved

to dismiss the action based on the two-year statute of limitations. The

Houston district court granted the motion and dismissed the suit,

holding Section 16.064 did not suspend the running of limitations

because the Dallas district court “was not deemed a ‘wrong court’

pursuant to the requirements of section 16.064.” Sanders v. Boeing Co.,

No. 4:21-CV-04042, 2022 WL 2349155, at *3 (S.D. Tex. June 1, 2022).

The flight attendants appealed, and the Fifth Circuit certified the two

questions to us. Sanders, 68 F.4th at 984.

3 The Fifth Circuit expressly did not reach the question of whether the

district court erred by dismissing for failure to comply with a court order under

Rule 41(b), affirming instead solely on the ground the court lacked jurisdiction.

2021 WL 3412509, at *4 n.5.

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II.

“Because of Lack of Jurisdiction”

We begin by addressing the first certified question: “Does Texas

Civil Practice & Remedies Code § 16.064 apply to this lawsuit where

Plaintiffs could have invoked the prior district court’s subject matter

jurisdiction with proper pleading?” Id. This question focuses on Section

16.064(a)(1), which requires that, “because of lack of jurisdiction in the

trial court where the action was first filed, the action is dismissed or the

judgment is set aside or annulled in a direct proceeding.” TEX. CIV. PRAC.

& REM. CODE § 16.064(a)(1).

The parties do not dispute that complete diversity has always

existed between them or that the Dallas district court dismissed the

action because the flight attendants failed to adequately plead the

factual basis for federal diversity jurisdiction. Boeing argues, and the

Houston district court agreed, that Section 16.064 does not apply here

because the Dallas district court in fact had—or at least could have

had—diversity jurisdiction if the flight attendants had properly pleaded

it. According to Boeing, under “the most liberal interpretation” of

Section 16.064(a)(1), “the original court must have actually lacked

jurisdiction.” But Section 16.064(a)(1) does not require that “the trial

court where the action was first filed lacked jurisdiction.” Instead, it

requires that the prior action was dismissed “because of lack of

jurisdiction.” Id. Here, regardless of whether the Dallas district court

had or could have had jurisdiction, the reason it dismissed the action, at

least in part, was lack of jurisdiction.

We have briefly addressed Section 16.064 in a few prior decisions,

but only in passing. In doing so, we have used language that could be

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read to support Boeing’s proposed narrow construction. We have said,

for example, that “Section 16.064 suspends the limitations period when

a party mistakenly, and in good faith, files suit in one court, when

jurisdiction was only proper in another.” City of DeSoto v. White, 288

S.W.3d 389, 401 (Tex. 2009) (emphasis added). And in In re United

Services Automobile Ass’n, 307 S.W.3d 299 (Tex. 2010), we stated that

Section 16.064 “is a legislative dictate that limitations be tolled for

‘any action’ filed in the wrong court,” that it “tolls limitations for those

cases filed in a trial court that lacks jurisdiction,” and that it “protects

plaintiffs who mistakenly file suit in a forum that lacks jurisdiction.” Id.

at 304, 311, 313 (all but first emphases added). 4 Most recently, in

Nathan v. Whittington, 408 S.W.3d 870 (Tex. 2013), we stated that

Section 16.064 applies only if the plaintiff “bring[s] suit (albeit in the

wrong court) before the limitations period expires.” Id. at 875 (emphasis

added). None of these cases, however, presented the issue we must

address here or required us to consider the distinction between a court

that “lacks jurisdiction” and a court that dismisses an action “because of

lack of jurisdiction.”

The language we used in our prior opinions tracked the

descriptions in several Fifth Circuit and Texas appellate court decisions

that narrowly construed Section 16.064 and its predecessor, article

4 See also United Servs. Auto. Ass’n, 307 S.W.3d at 304 (observing that

the Legislature initially enacted Section 16.064’s predecessor as “[a]n act to

extend the period of limitation of any action in the wrong court” (quoting Act of

Apr. 27, 1931, 42d Leg., R.S., ch. 81, 1931 Tex. Gen. Laws 124, 124, current

version at TEX. CIV. PRAC. & REM. CODE § 16.064) (emphasis added)).

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5539a,5 stating that the statute applies only when the claimant

“mistakenly” filed the prior action in “the wrong court,” 6 meaning a court

that in fact “lacked” subject-matter jurisdiction and thus was a court of

“improper jurisdiction. ”7 But like our prior decisions, those cases did not

present—and those courts were not required to decide—the issue of

Act of Apr. 27, 1931, 42d Leg., R.S., ch. 81, 1931 Tex. Gen. Laws

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124, 124.

6 See Agenbroad v. McEntire, 595 F. App’x 383, 387 (5th Cir. 2014) (“The

plain language of section 16.064 indicates that it is meant to apply only where

the plaintiff’s suit was filed in the ‘wrong court.’”); Clary Corp. v. Smith, 949

S.W.2d 452, 461 (Tex. App.—Fort Worth 1997, pet. denied) (holding Section

16.064 did not apply because the claimants did not file in the “wrong court” by

“mistake”); Bell v. Moores, No. 01-94-00826-CV, 1996 WL 74099, at *5 (Tex.

App.—Houston [1st Dist.] 1996, no writ) (not designated for publication)

(stating section 16.064 “deals with tolling of the statute of limitations when the

first suit is filed in the wrong court”); Turner v. Tex. Dep’t of Mental Health &

Mental Retardation, 920 S.W.2d 415, 419 (Tex. App.—Austin 1996, writ

denied) (“[Section 16.064] is designed to protect litigants who mistakenly file

their action in the wrong court.”); Chalmers v. Am. Nat’l Ins. Co., 103 S.W.2d

228, 229 (Tex. App.—El Paso 1937, no writ) (“In order for the . . . dismissal of

a suit to toll [article 5539a], the suit must have been first filed in a court that

lacked jurisdiction, or, as the caption of the act expressed it, ‘in the wrong

Court.’”).

7 See Hotvedt v. Schlumberger Ltd., 942 F.2d 294, 296 (5th Cir. 1991)

(“[Section 16.064] suspends the limitations period when a plaintiff, acting in

good faith, mistakenly files his lawsuit in a court lacking jurisdiction and

thereafter initiates a second action in a court of proper jurisdiction.”); Oram v.

Gen. Am. Oil Co. of Tex., 503 S.W.2d 607, 609 (Tex. App.—Eastland 1973, writ

ref’d n.r.e.) (stating article 5539a applies “only when the dismissal of the

former action was for lack of jurisdiction; if the court had jurisdiction the

statute is not tolled”) (citing Garrett v. Hartford Accident & Indem. Co., 107

S.W.2d 726, 728 (Tex. App.—Eastland 1937, no writ) (stating that article

5539a applies only if prior court is a court “which did not have jurisdiction” or

was a court of “improper jurisdiction”), and Binge v. Gulf Coast Orchards Co.,

93 S.W.2d 813, 814 (Tex. App.—San Antonio 1936, writ dism’d) (holding article

5539a did not apply because the prior court actually “had jurisdiction”)).

8

whether the statute applies when the prior court dismissed the action

because it lacked jurisdiction when it could have had jurisdiction if the

claimant had adequately pleaded the jurisdictional facts. 8

In contrast to these decisions, the Fifth Circuit and Texas

appellate courts have construed the provision broadly in other cases,

even when using similar “mistake” and “wrong court” language, holding

the section applies when the prior court lacked jurisdiction for any

reason9 and even when it actually had jurisdiction but made a

8 See Agenbroad, 595 F. App’x at 387–88 (holding Section 16.064 did not

apply because prior court dismissed for “lack of standing to sue”); Hotvedt, 942

F.2d at 297 (addressing case in which claimant voluntarily dismissed prior

action after the trial court stayed the action based on forum non conveniens

and holding that a stay “is not considered tantamount to a dismissal, much

less a dismissal on jurisdictional grounds”); Clary Corp., 949 S.W.2d at 461

(addressing case in which claimants made “tactical decisions” to allow

dismissal and then refile claims in same court); Bell, 1996 WL 74099, at *5

(holding statute did not apply because prior court dismissed for lack of

jurisdiction because plaintiff lacked standing, not because it was “the wrong

court”); Turner, 920 S.W.2d at 418 (presuming prior court dismissed “for lack

of jurisdiction” and focusing instead on whether second suit was “the same”

action as the first); Oram, 503 S.W.2d at 610 (addressing case in which prior

court dismissed in response to plea in abatement, not “for lack of jurisdiction”);

Garrett, 107 S.W.2d at 728 (addressing case in which prior court did not

dismiss prior action and instead claimant voluntarily nonsuited after

defendant removed case to federal court); Chalmers, 103 S.W.2d at 228

(addressing case in which prior court dismissed action for improper joinder of

parties and claims, not “for want of jurisdiction”); Binge, 93 S.W.2d at 814

(addressing case in which claimant voluntarily dismissed prior action).

9 See Long Island Tr. Co. v. Dicker, 659 F.2d 641, 647 (5th Cir. 1981)

(holding article 5539a applied when New York state court dismissed prior

action for lack of personal jurisdiction over the defendant, finding “no reason

to read into the statute limitations that are not contained in the words

therein”); Triple P.G. Sand Dev., LLC v. Del Pino, 649 S.W.3d 682, 691, 693,

698 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (holding prior court’s

dismissal of plea in intervention based on intervenors’ failure to adequately

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discretionary decision not to exercise it. 10 Still others have applied the

section even more broadly, expressly rejecting the notion that the

statute applies only when the prior court was the “wrong court,” 11 and

holding it applies whenever the dismissal order states that the dismissal

is “for want of jurisdiction.” 12

We conclude that Section 16.064(a)(1)’s plain language does not

support a “wrong court” requirement, at least in the sense many courts

have described and applied it. The idea that Section 16.064 applies only

when the prior action was filed in “the wrong court” derives from the

section’s predecessor statute, article 5539a. Like Section 16.064, the text

plead “jurisdictional standing” was “tantamount to a dismissal for ‘lack of

jurisdiction’” and “satisfied the ‘dismissed for lack of jurisdiction’ requirement

set out in section 16.064(a)”).

10 See Vale v. Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no

writ) (holding the “federal court’s refusal to exercise jurisdiction over a pendent

state claim is tantamount to a dismissal for lack of jurisdiction”); Burford v.

Sun Oil Co., 186 S.W.2d 306, 310, 315 (Tex. App.—Austin 1944, writ ref’d

w.o.m.) (stating that article 5539a applies when prior case is “mistakenly but

in good faith brought in the wrong court” but holding federal court’s

discretionary decision not to exercise its jurisdiction because state courts

provided adequate remedy qualified as a dismissal “because the Federal court

was a wrong court, an ‘improper court,’ and therefore in effect a ‘court of

improper jurisdiction’”).

11 See Brown v. Fullenweider, 135 S.W.3d 340, 343 n.2 (Tex. App.—

Texarkana 2004, pet. denied) (refusing to follow prior decisions because the

court “fail[ed] to find in the text of Section 16.064(a) either a requirement that

the first filing be a ‘mistake’ or that it be filed in the ‘wrong court’”).

12 See Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645, 651–52 (5th

Cir. 1983) (rejecting argument that “article 5539a was designed to reach only

a ‘wrong court’ sort of lack of jurisdiction” because “‘wrong court’ was so clearly

used to mean ‘a court of improper jurisdiction’” and holding “a dismissal

specifically denoted a dismissal for want of jurisdiction is in fact a dismissal

for want of jurisdiction within the meaning of article 5539a”).

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of that early act did not require that the prior action be filed in a “wrong

court” and instead required that the action “be dismissed in any way . . .

because of a want of jurisdiction of the Trial Court in which such action

shall have been filed.” Act of Apr. 27, 1931, 42d Leg., R.S., ch. 81, 1931

Tex. Gen. Laws 124, 124 (emphasis added). But the act’s title described

the statute as “[a]n act to extend the period of limitation because of filing

of any action in the wrong court.” Id. (emphasis added). When the

Legislature codified the act in 1985, it revised the title to delete the

“wrong court” language but, as Boeing notes, replaced it with the title,

“Effect of Lack of Jurisdiction.” Because a statute’s title can “inform the

inquiry into the Legislature’s intent,” TIC Energy & Chem., Inc. v.

Martin, 498 S.W.3d 68, 75 (Tex. 2016), Boeing urges us to construe

Section 16.064(a)(1) to require that the prior court could never have

properly acquired jurisdiction and was thus in fact the “wrong court.”

The El Paso Court of Appeals was the first appellate court to

incorporate the “wrong court” language from article 5539a’s title into its

text, stating in dicta that tolling is available only if the action was “first

filed in a court that lacked jurisdiction, or, as the caption of the act

expressed it, ‘in the wrong Court.’” Chalmers, 103 S.W.2d at 229. As

noted, numerous other courts—including this Court—followed suit,

although they did not always agree on what it meant for a court to be

“wrong.”

In Agenbroad and Bell, for example, the Fifth Circuit and

Houston’s First District Court of Appeals held that the statute did not

apply—even though the prior courts dismissed those actions because of

lack of jurisdiction—because the courts based their decisions on the

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claimants’ lack of jurisdictional standing, which in those courts’ view

made the claimants the wrong claimants but did not make the court the

“wrong court.” Agenbroad, 595 F. App’x at 387–88; Bell, 1996 WL 74099,

at *5.13 Boeing relies particularly on Agenbroad, which noted that the

claimants could have established jurisdictional standing had they

pleaded their claims differently and suggested that Section 16.064 does

not apply when “the plaintiff could have amended his pleadings to come

within the court’s jurisdiction.” Agenbroad, 595 F. App’x at 388 (citing

Clary Corp., 949 S.W.2d at 461).

But more recently, in Triple P.G., the First District Court of

Appeals (without citing its unpublished opinion in Bell) held that a prior

court’s dismissal for failure to adequately plead jurisdictional standing

was “tantamount to a dismissal for ‘lack of jurisdiction’” and “satisfied

the ‘dismissed for lack of jurisdiction’ requirement set out in section

16.064(a).” 649 S.W.3d at 691, 693, 698. And before Agenbroad, the Fifth

Circuit held in Long Island that article 5539a applied when a New York

state court dismissed the prior action not for lack of subject-matter

jurisdiction but for lack of personal jurisdiction over the defendant,

finding “no reason to read into the statute limitations that are not

contained in the words therein.” 659 F.2d at 647.

We agree, of course, that a statute’s title can inform its meaning,

but it “cannot override the plain meaning of the underlying text.” Brown

13 Similarly, in Turner, the Austin Court of Appeals concluded that the

statute did not apply because, “[r]ather than mistakenly filing his action in

the wrong court, Turner simply filed the wrong cause of action,” even though

the court accepted that the prior court dismissed the action for lack of

jurisdiction. Turner, 920 S.W.2d at 419.

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v. City of Houston, 660 S.W.3d 749, 754 (Tex. 2023). We must consider

the reference to “lack of jurisdiction” in Section 16.064’s title (and the

reference to “wrong court” in article 5539a’s title, to the extent we should

consider it at all) in light of the actual language in the statutory text. In

that light, we can agree with the courts that have concluded that the

terms are essentially synonymous, such that a “wrong court” is a court

that lacks jurisdiction. See Griffen, 706 F.2d at 651 (“[T]he legislature

appears to have thought the wrong court was one that wanted

jurisdiction.”); Fullenweider, 135 S.W.3d at 345 (concluding “the terms

are synonymous as applied to the tolling provision”). But Section

16.064(a)(1) does not require that the prior court was the “wrong court”

or that it “lacked jurisdiction.” It requires that the prior action was

dismissed “because of lack of jurisdiction.” TEX. CIV. PRAC. & REM. CODE

§ 16.064(a)(1). If the prior action was dismissed “because of lack of

jurisdiction,” the statute’s plain-language requirement is satisfied even

if the court actually had jurisdiction or could have had it if the

jurisdictional facts were properly pleaded. 14

14 The parties each argue in the alternative that it ultimately doesn’t

matter whether the statute imposes a “wrong court” requirement. Boeing

argues, for example, that even if the statute does not require that the prior

court could never properly exercise jurisdiction, the Dallas district court did

not dismiss the prior action “solely upon a lack of jurisdiction” under federal

Rule 12(h)(3) but also because the flight attendants failed to comply with the

court’s initial order under Rule 41(b). But Section 16.064 does not require that

the prior court dismissed the action “solely” because of lack of jurisdiction. And,

in any event, the order the flight attendants failed to comply with was an order

that required them to adequately plead the basis for diversity jurisdiction.

Indisputably, the court dismissed the prior action because it believed it lacked

jurisdiction, and the statute does not distinguish between the reasons for the

lack of jurisdiction. Moreover, the Fifth Circuit expressly did not address the

13

Boeing contends, however, that Section 16.064 requires that the

prior court could not properly exercise jurisdiction because subsection

(a)(2) expressly requires that the “same action” be refiled in a “different

court” that is a “court of proper jurisdiction.” Id. § 16.064(a)(2) (emphasis

added). According to Boeing, the section “juxtaposes” the prior court and

the subsequent court “in parallel fashion,” such that if the “different”

court in which the action is later filed must be one “of proper

jurisdiction,” then the prior court must necessarily have been one of

“improper jurisdiction.” The prior court, Boeing contends, had to

actually lack jurisdiction because it cannot be both a court where there

is a “lack of jurisdiction” under subsection (a)(1) and “a court of proper

jurisdiction” under subsection (a)(2). And because the Dallas district

court was actually “a court of proper jurisdiction” for this case, Boeing

asserts, it cannot also be a court where there was “a lack of jurisdiction.”

But this argument also overlooks the statute’s plain language.

Section 16.064(a)(2) requires that the action be refiled in “a court of

proper jurisdiction,” not “the court of proper jurisdiction” as if there

failure-to-comply ground and affirmed the dismissal solely on the ground that,

in light of the inadequate pleadings, the Dallas district court lacked

jurisdiction. 2021 WL 3412509, at *4 n.5.

The flight attendants, meanwhile, argue that even if Section 16.064

requires that the prior court was in fact the “wrong court” and could never

properly exercise jurisdiction, the Fifth Circuit’s decision affirming the

dismissal establishes as a matter of law that the Dallas district court in fact

lacked jurisdiction. See id. at *4 (“Plaintiffs have not convinced us that the

district court erred in dismissing this case for lack of subject-matter

jurisdiction.”). Because Section 16.064(1) requires only that the action was

dismissed “because of lack of jurisdiction” and does not require that the prior

court actually lacked jurisdiction, we need not address this alternative

argument.

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could be only one court in which jurisdiction could be proper. Id.

§ 16.064(a)(2) (emphasis added). And more importantly, as noted,

subsection (a)(1) does not require that the prior court be a “court of

improper jurisdiction” or even a court that “lacks jurisdiction”; it

requires that the action be dismissed from that court “because of lack of

jurisdiction.” Id. § 16.064(a)(1) (emphasis added). The fact that

subsection (a)(1) refers to the reason for the dismissal while subsection

(a)(2) refers to the nature of the court negates Boeing’s proposed

“parallel” reading.

Finally, Boeing contends that Section 16.064 does not apply here

because the flight attendants’ action in the Dallas district court was not

their “first” action and their refiling in the state court was not their

“second.” See id. § 16.064(a) (referring to the “second filing of the same

action,” the “court where the action was first filed,” and “the first” filing).

Because the flight attendants “first” filed their claims in the federal

court in Houston, promptly dismissed that action, refiled in the Dallas

district court, and then filed again in state court, Boeing contends that

the statute applies only if the Houston action was dismissed “because of

lack of jurisdiction.” After all, Boeing explains, “first” means “preceding

all others,” so only the Houston action could be “first.” We again are not

convinced.

We have identified only one case in which a court addressed

whether or how Section 16.064 or article 5539a applies when the same

action is filed and refiled three or more times. See Tech. Consultant

Servs., Inc. v. Lakewood Pipe of Tex., Inc., 861 F.2d 1357 (5th Cir. 1988).

As here, that case involved a “trilogy of suits.” A Florida state court

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dismissed the first for lack of personal jurisdiction over the defendant, a

Florida federal court dismissed the second for the same reason, and the

third was filed in a federal court in Texas. Id. at 1360. Relying on Texas

court decisions that consistently applied the statute “broadly in light of

its remedial goals,” the court concluded that it permits the “good faith

refiling of a ‘subsequent’ suit, not just a ‘second’ suit.” Id. at 1361.15

We need not rely on a “broad” or “liberal” construction to agree

with this result, however, as we believe the statute’s plain language

supports that same result. Section 16.064(a) addresses only two

“different” actions and their impact on the limitations period. In its

introductory paragraph, it refers to “an action in a trial court,” not to

“the first action,” and it then refers to “a second filing of the same action,”

not to “the second filing of the same action.” TEX. CIV. PRAC. & REM. CODE

§ 16.064(a) (emphases added). In this usage, “second” refers to the action

“next” following “an action in a trial court.” See Second, WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY (2002) (“next to the first in place

or time”); Second, THE OXFORD ENGLISH DICTIONARY (2d ed. 1989)

(“coming next after the first according to any contextually understood

principle of enumeration”); see also Tech. Consultant, 861 F.2d at 1361.

But the section does not in any way address the impact that either of

those two actions have on a prior or later third action or of the third

action on the two. As between the only two actions the section addresses,

15 Courts in other jurisdictions have applied other tolling statutes

similarly, but we do not find them helpful because the language of those

statutes differs materially from the language of article 5539a and Section

16.064. See, e.g., Sharp Bros. Contracting Co. v. Westvaco Corp., 817 P.2d 547,

551–52 (Colo. App. 1991) (citing cases).

16

one is necessarily “first” and the other is “next” or “second.” Here, the

flight attendants contend that the section tolls limitations from “the

date of filing an action” in the Dallas district court and the date of “a

second filing of the same action” in state court. We conclude that, as

between the two, these actions qualify as the “first” and “second” actions

under Section 16.064. 16

Based on the statute’s plain language, we conclude that Section

16.064(a)(1) requires what it plainly says it requires: the prior action

must be dismissed “because of lack of jurisdiction.” The requirement is

16 Like the Fifth Circuit in Technical Consultant, we note that

subsection (b) of Section 16.064, which makes tolling inapplicable if “the first

filing was made with intentional disregard of proper jurisdiction,” provides a

means to “prevent parties from abusing the provision with an unending string

of unjustifiable wrong-court filings.” 861 F.2d at 1361.

We also note that no party in this case has alleged or argued that the

flight attendants filed their action in the Dallas district court “with intentional

disregard of proper jurisdiction,” and the Fifth Circuit’s certified questions do

not ask us to address subsection (b). Boeing relies in part on subsection (b) to

support its contention that subsection (a)(1) requires the first court to actually

“lack jurisdiction,” arguing that it “would make little sense” for subsection (b)

to foreclose tolling when the first filing is made “with intentional disregard of

proper jurisdiction” if the first court could in fact be a court of “proper

jurisdiction.” But we fail to see the conflict. A party could file an action “with

intentional disregard of proper jurisdiction” in a court that lacks jurisdiction

only because the party failed to give proper regard to its jurisdictional

allegations. Here, for example, the federal district court gave the flight

attendants an unusually detailed roadmap to properly plead diversity

jurisdiction, but the flight attendants failed to follow that map in its next

amended pleading. For whatever reason, Boeing has expressly disclaimed any

argument that the flight attendants intentionally disregarded proper

jurisdiction, so we must await another case to address subsection (b)’s scope.

But we do note that while subsection (a) may grant substantial additional time

to refile a case dismissed for lack of jurisdiction, subsection (b) penalizes

intentional jurisdictional errors. Beyond that brief response, however, we need

not and do not address subsection (b).

17

satisfied when a court dismisses an action because of lack of jurisdiction

regardless of whether the court erred and actually had jurisdiction or

could have had jurisdiction had the claims been pleaded differently.

III.

Dismissal Becomes Final

We now turn to the Fifth Circuit’s second certified question: “Did

Plaintiffs file this lawsuit within sixty days of when the prior judgment

became ‘final’ for purposes of Texas Civil Practice & Remedies Code

§ 16.064(a)(2)?” Sanders, 68 F.4th at 984. This question focuses on

Section 16.064(a)(2), which requires that, “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). Boeing contends that a dismissal “becomes final”

under this section when the court that dismisses the action loses plenary

power over the case, regardless of whether the losing party appeals. In

contrast, the flight attendants argue that when a party appeals a

dismissal order, the dismissal does not become final until the party has

exhausted their appellate remedies and the appellate court’s power to

alter the judgment ends. We agree with the flight attendants.

Because the statute expressly refers not to when the dismissal

occurs but to when “the dismissal or other disposition becomes final,” id.

§ 16.064(a)(2) (emphasis added), the parties agree that the sixty-day

period begins sometime after the initial dismissal order is signed or

entered. See Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, 498

S.W.3d 236, 242 (Tex. App.—Austin 2016, pet. denied) (“The statute’s

use of ‘becomes final’ suggests that a judgment is not always final for

purposes of [Section 16.064(a)(2)] the instant the judgment is signed or

18

rendered.”). But beyond that, there are many points at which it could be

said that the dismissal “becomes final.”

Indeed, as we have previously acknowledged, “the term ‘final,’ as

applied to judgments, has more than one meaning” and “applies

differently in different contexts.” Street v. The Honorable Second Ct. of

Appeals, 756 S.W.2d 299, 301 (Tex. 1988) (quoting McWilliams v.

McWilliams, 531 S.W.2d 392, 393–94 (Tex. App.—Houston [14th Dist.]

1975, no writ)); see also Long v. Castle Tex. Prod. Ltd. P’ship, 426 S.W.3d

73, 78 (Tex. 2014) (“We assess a judgment’s finality differently,

depending upon the context.”). The term “final” can mean that an order

or judgment is appealable, 17 but it can also mean that it is not

appealable.18 It can refer to the content and terms of an order or

judgment, such as whether the order on its face disposes of all claims

and parties, 19 or to the order’s future effect, such as when the court loses

17 Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (holding

a judgment entered based on a proceeding other than a conventional trial on

the merits is “final” if it “actually disposes of every pending claim and party”

or “it clearly and unequivocally states that it finally disposes of all claims and

all parties”); see also Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (“To

be final for purposes of appeal, a judgment must dispose of all issues and

parties in a case.” (citing Street, 178 S.W.3d at 301)); Mobil Oil Corp. v.

Matagorda Cnty. Drainage Dist. No. 3, 597 S.W.2d 910, 911 (Tex. 1980) (“It is

the finality which makes a judgment a subject for review.”).

18 Sultan, 178 S.W.3d at 752 (holding that statute declaring that the

“judgment of the county court or the county court at law is final” prohibits

appeals to the court of appeals); Seale v. McCallum, 287 S.W. 45, 47 (Tex. 1926)

(holding statute declaring that district court judgment in election contest is

“final” precluded appellate review); see also Hous. Mun. Emps. Pension Sys. v.

Ferrell, 248 S.W.3d 151, 158 (Tex. 2007) (“The words ‘final and binding,’ when

used to describe an administrative decision, preclude judicial review.”).

19 Lehmann, 39 S.W.3d at 205.

19

plenary power to alter the order or judgment, 20 or to when the order or

judgment takes on a preclusive effect, 21 vests rights as between the

parties,22 begins accruing post-judgment interest, 23 establishes

frivolousness for purposes of barring future claims, 24 triggers automatic

suspension of a license, 25 or gives rise to a subsequent claim based on

the order or judgment. 26

20 Street, 756 S.W.2d at 301.

21 Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986) (holding

judgment is “final for the purposes of issue and claim preclusion ‘despite the

taking of an appeal unless what is called an appeal actually consists of a trial

de novo’” (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 13 (AM. L. INST.

1982))).

22 Street, 756 S.W.2d at 301.

23 Long, 426 S.W.3d at 79–80 (holding if appellate court reverses and

remands, subsequent judgment is final for purposes of post-judgment interest

if trial court must reopen the record on remand, but original, erroneous

judgment is final for such purpose if trial court need not reopen the record or

if appellate court renders judgment trial court should have rendered).

24 In re Simmonds, 271 S.W.3d 874, 881–82 (Tex. App.—Waco 2008,

orig. proceeding) (holding dismissal order finding claim to be frivolous is not

final for purposes of precluding future claims until order is affirmed if appealed

because “a judgment is not final, in the sense that the litigation is concluded,

so long as an appeal is pending”).

25 Barham v. Tex. Dep’t of Pub. Safety, 398 S.W.2d 168, 169 (Tex. App.—

Eastland 1965, no writ) (“We hold that a judgment of conviction for the offense

of driving an automobile on a public highway while intoxicated which has been

appealed becomes final when the appeal is finally determined by the Court of

Criminal Appeals.”).

26 See, e.g., Evanston Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh,

Pa., No. 1:09-CV-909, 2012 WL 12977322, at *8 (E.D. Tex. Mar. 19, 2012)

(holding claim for equitable contribution accrues when litigation is finally

“completed” following all appeals, making claimant’s underlying liability

“absolutely certain”); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829

20

Not surprisingly then, courts have disagreed over when a

dismissal “becomes final” under Section 16.064(a)(2) and its

predecessor, article 5539a. In reviewing these decisions, we have found

it helpful to distinguish between cases in which no party appeals the

dismissal for lack of jurisdiction and those in which at least one party

does appeal.

When no party appeals the dismissal for lack of jurisdiction, the

analysis appears to be relatively easy. In one case where the trial court

dismissed the action for lack of jurisdiction and no party appealed, we

stated that whether the claimant timely filed the subsequent action

depended on whether that action “was ‘commenced’ within sixty days

after dismissal of the [prior] suit,” but we did not expound on when that

“dismissal” occurred or became “final.” Rigo Mfg. Co. v. Thomas, 458

S.W.2d 180, 182 (Tex. 1970).27 At least one court of appeals has held

that, if no party appeals a trial court’s dismissal for lack of jurisdiction,

the dismissal “becomes final” when the trial court loses plenary power

and can no longer reconsider or modify its judgment. See Reagan Nat’l,

498 S.W.3d at 241–42 (holding when “neither party appeals,” the

(Tex. 1990) (holding good-faith claim accrues when insurer wrongfully denies

claim rather than when claim is finally resolved in court); Street, 756 S.W.2d

at 301 (“[A] judgment is final for the purposes of bringing a Stowers action if it

disposes of all issues and parties in the case, the trial court’s power to alter the

judgment has ended, and execution on the judgment, if appealed, has not been

superseded.”).

27 We instead held in Rigo Manufacturing that the claimants did not

timely “commence” the subsequent action because, although they filed the

subsequent action only ten days after the prior court dismissed the first action,

they did not diligently procure issuance and service of citation on the defendant

until some eighteen months later. 458 S.W.2d at 182.

21

dismissal order “did not become final until at least 30 days from its order

denying the [defendant’s] motion for new trial”). We agree with this

understanding of finality when no party appeals a trial court’s dismissal

for lack of jurisdiction.

Another example of when no party appeals a dismissal for lack of

jurisdiction can occur when (1) the trial court does not dismiss because

of lack of jurisdiction, (2) a party appeals or seeks other relief from that

court’s order or judgment, (3) the appellate court does dismiss the action

because of lack of jurisdiction, and (4) no party seeks review of the

appellate court’s dismissal. As Boeing points out in its briefs, Section

16.064 addresses this scenario by requiring in subsection (a)(1) that,

“because of lack of jurisdiction in the trial court . . . , the action is

dismissed or the judgment is set aside or annulled in a direct

proceeding,” and by requiring in subsection (a)(2) that the action be

commenced in a court of proper jurisdiction within sixty days “after the

date the dismissal or other disposition becomes final.” TEX. CIV. PRAC. &

REM. CODE § 16.064(a) (emphases added). Because in this example, as

in the first, no party appeals the dismissal for lack of jurisdiction, the

finality analysis is the same as under the first example: the dismissal

“becomes final” when the appellate court (the court that first orders the

dismissal) loses plenary power and can no longer reconsider or modify

its judgment.

Vale illustrates this example. The Austin Court of Appeals held

there that “the earliest date from which the sixty-day period could begin

to run was” the date the appellate court issued its opinion dismissing

the claims for want of jurisdiction. 809 S.W.2d at 327 (emphasis added).

22

Similarly, and more specifically, the Waco Court of Appeals held in such

circumstances that the appellate court’s dismissal “becomes final” when

that court “disposes of all issues and parties in the case and the court’s

power to alter the judgment has ended.” Oscar Renda Contracting, Inc.

v. H&S Supply Co., 195 S.W.3d 772, 776 (Tex. App.—Waco 2006, pet.

denied); see Allright, Inc. v. Guy, 590 S.W.2d 734, 735–36 (Tex. App.—

Houston [14th Dist.] 1979, writ ref’d n.r.e.) (dismissing case for lack of

jurisdiction and advising that, “[s]ince the county court at law was

without jurisdiction in this case, appellee may, of course, refile in the

proper court within sixty days of the date that this decision becomes

final” (citing former art. 5539(a))). We again agree with this

understanding of when the dismissal for lack of jurisdiction “becomes

final.”

Yet another example of when no party appeals a dismissal for lack

of jurisdiction can occur when (1) neither the trial court nor the court of

appeals dismisses for lack of jurisdiction, (2) a party seeks review in this

Court, (3) this Court accepts review and dismisses the action because of

lack of jurisdiction, and (4) no party seeks review of this Court’s

dismissal in the United States Supreme Court. See Fullenweider, 135

S.W.3d at 343 (addressing such circumstances and noting that the

parties conceded that claimant timely filed subsequent suit within sixty

days after this Court’s judgment). We believe the same understanding

of finality should apply here as well, such that a dismissal because of

lack of jurisdiction that is ordered in the first instance by this Court

“becomes final” when this Court loses plenary power and can no longer

reconsider or modify our judgment.

23

The analysis potentially becomes more difficult when a party

appeals an order that dismisses an action because of lack of jurisdiction

and the order is affirmed on appeal.28 Here, for example, the Dallas

district court dismissed because of lack of jurisdiction, the flight

attendants appealed the dismissal, and the Fifth Circuit affirmed. The

Austin Court of Appeals acknowledged but expressly did not address

this scenario in Vale, 809 S.W.2d at 327 n.4 (“We do not address the

question of when a disposition becomes final for purposes of section

16.064 where, for example, a district-court dismissal for lack of

jurisdiction is later affirmed on appeal.”), but other courts have. At least

one Texas court of appeals has held that a dismissal that is appealed

becomes final on the date of the initial dismissal order. See Kaplan v.

Clear Lake City Water Auth., No. C14-91-01344-CV, 1992 WL 383881,

at *5 (Tex. App.—Houston [14th Dist.] Dec. 23, 1992, writ denied)

(“Although appellant appealed the district court’s judgment, this appeal

did not affect the applicability of § 16.064.”). And a federal district court

has held it becomes final when the court that ordered dismissal loses

plenary power and can no longer alter its judgment. Bullock v. Univ. of

Tex. at Arlington, No. 4:21-cv-0864-P, 2021 WL 5866644, at *6 (N.D.

Tex. Dec. 10, 2021). In other words, in these courts’ view, the dismissal

“becomes final” no later than when the court that ordered dismissal loses

plenary power, and an appeal from the dismissal does not affect the

dismissal’s finality.

28 Of course, if a party appeals and the dismissal is reversed, the action

remains live and no need for tolling arises.

24

Other courts, however, have held that a dismissal that is

appealed does not become final until the appellate courts ultimately

resolve the appeal and, more specifically, when that judgment itself

becomes final after all appeals. In Republic National Bank v.

Rogers, 575 S.W.2d 643, 644–45 (Tex. App.—Waco 1978, writ ref’d

n.r.e.), for example, the Waco Court held that a subsequent suit was

timely because it was filed within sixty days after the Fifth Circuit

issued its decision affirming a federal district court’s dismissal order.

And in Allright, after the Fourteenth Court dismissed for lack of

jurisdiction and advised that the claimant could “refile in the proper

court within sixty days of the date that this decision becomes final,” 590

S.W.2d at 735–36, it later noted that the claimant then sought this

Court’s review and concluded that the dismissal did not actually become

final until we refused to review that decision, Allright, Inc. v. Guy, 696

S.W.2d 603, 605 (Tex. App.—Houston [14th Dist.] 1985, no writ).

We believe the Rogers and Allright courts properly understood the

meaning of “final” as used within the context of Section 16.064(a)(2)’s

reference to a dismissal that “becomes final.” To be sure, for purposes of

appeal, an order that dismisses an action because of lack of jurisdiction

(whether entered by a trial court or an appellate court in the first

instance) must be “final” even to be appealable or reviewable, but “final”

in that sense refers to the order’s terms, asking whether on its face the

order disposes of all claims and parties. Section 16.064 is concerned not

with the order’s terms but with the dismissal’s effect. Indeed, Section

16.064 requires that the subsequent action be filed within sixty days

25

after the “dismissal” becomes final, not after the “dismissal order”

becomes final.

As we agreed a hundred years ago,

the judgment of a district court, though final in terms, is

not final in effect, so long as appellate proceedings are

pending seeking a revision of the same. Nor is a judgment

of the Court of Civil Appeals final in effect so long as a valid

application for writ of error is pending, whether such

application be denied or dismissed for want of jurisdiction.

Cont’l Gin Co. v. Thorndale Mercantile Co., 254 S.W. 939, 941 (Tex.

[Comm’n Op.] 1923) (emphases added) (citations omitted). 29

We relied in Continental Gin Co. on our earlier decision in

Dignowity v. Fly, 210 S.W. 505, 506 (Tex. 1919), in which we considered

when a court of appeals’ judgment that reversed a trial court’s judgment

and remanded the case to that court became “final” for purposes of a

statute that required the mandate to issue within twelve months after

the rendition of a “final” judgment. We held in Dignowity that if a party

sought review of the court of appeals’ judgment in this Court, the

judgment did not become “final” until we denied review, explaining that

29 See also Simmonds, 271 S.W.3d at 882 (“[A] judgment is not final, in

the sense that the litigation is concluded, so long as an appeal is pending.”);

Apparel Contractors, Inc. v. Vantage Props., Inc., 620 S.W.2d 666, 668 (Tex.

App.—Dallas 1981, writ ref’d n.r.e.) (“Regardless of whether a judgment has

been superseded, it is not final so long as an appeal is pending, and, although

it may be enforced by execution, payment of a fund to one party pending appeal

does not discharge liability to a different party that may be established after

reversal.” (citing Gonzalez v. Tex. Emp. Ins. Ass’n, 509 S.W.2d 423, 426 (Tex.

App.—Dallas 1974, writ ref’d n.r.e.)); Gonzalez, 509 S.W.2d at 426 (“A

judgment is not final so long as an appeal is pending, whether or not it has

been superseded. Consequently, no right can be asserted under a judgment

that has been reversed.”).

26

“it is the settled law that an appeal, with or without supersedeas,

operates to continue a pending suit, so as to deprive the judgment

appealed from of that finality ‘necessary to entitle it to admission in

evidence in support of the right or defense declared by it.’” Id. (quoting

Tex. Trunk Ry. Co. v. Jackson Bros., 22 S.W. 1030, 1032 (Tex. 1893)).

Otherwise, we explained, the trial court could ignore the court of

appeals’ decision and dismiss the case simply because the case remained

pending in this Court a year after the court of appeals’ judgment. Id.

As the Wisconsin Supreme Court later explained, relying in part

on our decision in Dignowity, this concept of “finality”—which focuses

not on whether an order’s terms make it final as opposed to interlocutory

but on the order’s effect on future actions—“can be attributed to the term

‘final judgment’ more easily in cases where a period of time within which

to act is limited to run from a final judgment.” Nw. Wis. Elec. Co. v. Pub.

Serv. Comm’n, 22 N.W.2d 472, 474 (Wis. 1946) (citing Dignowity, 210

S.W. at 505) (holding reference to “final judgment” referred to “a

judgment not open to attack by appeal or as to which an appeal had been

pursued and the judgment of the circuit court affirmed”). That, of course,

is exactly the sense in which Section 16.064(a)(2) uses the term “final,”

by requiring the subsequent action to be commenced within sixty days

after the “dismissal . . . becomes final.” TEX. CIV. PRAC. & REM. CODE

§ 16.064(a)(2).

This construction is consistent with the common understanding

of the term “final” as used within the context of Section 16.064 in light

of the realities that section addresses. When a trial court dismisses an

action because of lack of jurisdiction and the claimant appeals and

27

argues that the court in fact had jurisdiction, the parties’ dispute over

the jurisdictional issue remains live—and the dismissal is not truly

“final”—until the appellate court loses plenary power to resolve that

dispute. And if the appellate court affirms the dismissal, or if the

appellate court was the first to dismiss because of lack of jurisdiction,

the dispute still exists until this Court loses power to act on any timely

filed petition for review. See Freeport-McMoRan Oil & Gas LLC v. 1776

Energy Partners, LLC, 672 S.W.3d 391, 398–99 (Tex. 2023) (explaining

that our decisions become “final” when we issue a mandate because

“[u]ntil then, the dispute still existed because [a party] could file a

motion for rehearing and convince us to change our opinion and

judgment”).

Opposing this construction, Boeing argues that the distinction

Section 16.064 draws between a trial court’s “dismissal” for lack of

jurisdiction and an appellate court’s “other disposition” for lack of

jurisdiction (referring to when the trial court’s “judgment is set aside or

annulled in a direct proceeding”) necessarily “establishes two distinct

dispositions that start the 60-day clock—one in the trial court and one

in the court of appeals.” Based on this premise, Boeing concludes that if

(as here) a trial court “dismissal” occurs, then an appellate court’s “other

disposition” becomes irrelevant to the issue of when the “dismissal”

becomes final, such that all that matters is when the order of the court

that dismissed the action (whether a trial court’s dismissal or an

appellate court’s other disposition) becomes final. We agree with

Boeing’s premise, but not with its conclusion. The statute indeed

distinguishes between a trial court’s “dismissal” and an appellate court’s

28

“other disposition,” and in each case the dismissal must be “because of

lack of jurisdiction in the trial court.” But that still leaves the question

of when “the dismissal or other disposition becomes final,” and the

distinction Boeing relies on sheds no light on that question.

Boeing also contends that its proposed construction is necessary

to “promote the certainty and finality that limitations is meant to

ensure” and, conversely, delaying finality of a dismissal order until all

appeals are exhausted would “frustrate the purposes of statutes of

limitations.” See Childs v. Haussecker, 974 S.W.2d 31, 38–39 (Tex. 1998)

(explaining that statutes of limitations are intended to “help ensure that

the search for truth is not impaired by stale evidence or the loss of

evidence, and that defendants are guaranteed a point of repose for past

deeds after a reasonable period”). But Section 16.064 is not a statute of

limitations, it is an exception to a statute of limitations. Its stated

purpose is to “suspend” the applicable limitations period, despite the

risk of stale evidence and the need for repose. 30 TEX. CIV. PRAC. & REM.

CODE § 16.064(a).

We do not wholly discount Boeing’s concern about the length of

time appellate proceedings could extend a limitations period. But the

inevitable alternative under Boeing’s proposed construction is to require

claimants to quickly file a second action and then either forfeit their

right to appeal the dismissal for lack of jurisdiction or litigate the appeal

30 We note that the risk of the suspension resulting in stale or lost

evidence is quite slight in this case, as the parties had the opportunity to

engage in discovery for over a year before the Dallas district court dismissed

the action.

29

and the second action simultaneously. 31 And if the claimant prevails on

appeal and reverses the dismissal, the second action would have been

unnecessary all along. We addressed a similar concern in Street, in

which we held that, for purposes of giving rise to a Stowers action

against an insurer that fails to reasonably settle a claim against its

insured within its policy limits, a trial court judgment is final “if it

disposes of all issues and parties in the case, the trial court’s power to

alter the judgment has ended, and execution on the judgment, if

appealed, has not been superseded.” Street, 756 S.W.2d at 301. But we

clarified that despite that rule of finality for purposes of the Stowers

action, “the statute of limitations will not begin to run until all appeals

have been exhausted” because “[n]o valid public policy is served by

forcing an insured to bring an action which may ultimately prove

unnecessary.” Id. at 302.

Finally, Boeing argues that a trial court’s order “becomes final”

when that court loses plenary power because Section 16.064 “is meant

to give plaintiffs who file in the wrong court an opportunity to refile in

a proper court,” and when the trial court dismisses for lack of

jurisdiction, “the plaintiff is on notice” at that point in time “that he has

filed in the wrong court.” But in fact, no one knows if the trial court truly

lacked jurisdiction until any appeals from the dismissal order have been

exhausted. Until that point, the trial court’s dismissal order may be

31 Theoretically, the claimant could file a second action and then seek

to abate it until the appeal from the dismissal is finally resolved, but an

abatement of the litigation would itself undermine the purposes of limitations

and, at least in most respects, be no different than suspending the limitations

period.

30

“final” (and thus appealable), but the “dismissal” itself is not. Because

Section 16.064(a)(2) requires timely filing after the “dismissal” (as

opposed to the “dismissal order”) “becomes final,” and because the

statute uses the term “final” to refer to the future effect of the dismissal

by limiting the time to file a second action, we hold that a dismissal or

other disposition “becomes final” under Section 16.064(a)(2) when the

parties have exhausted their appellate remedies and the courts’ power

to alter the dismissal has ended.

IV.

Answers to Certified Questions

Based on our holdings explained above, we answer the Fifth

Circuit’s certified questions as follows: (1) because the Dallas district

court dismissed the first action because of lack of jurisdiction, Section

16.064 applies even though the flight attendants could have invoked

that court’s subject-matter jurisdiction with proper pleading, and (2) the

flight attendants filed this second action in the state court in Harris

County within sixty days after the Dallas district court’s dismissal of the

first action became “final” by filing within sixty days after they

exhausted all appeals from the dismissal and the appellate court lost

plenary power.

Jeffrey S. Boyd

Justice

OPINION DELIVERED: December 1, 2023

31