The Texas Supreme Court on Friday answered two certified questions from the U.S. Court of Appeals for the Fifth Circuit and in doing so revived the personal injury claims of two flight attendants who suffered on-the-job injuries in January 2017.
The Fifth Circuit had asked the state’s high court to interpret Texas Civil Practice and Remedies Code section 16.064, which flight attendants Marvin Sanders and Matthew Sodrok argued was a jurisdiction-saving statute that would enable them to still bring their lawsuit against The Boeing Company and two other entities over injuries sustained while they were staffing a flight. Sanders and Sodrok argued a district court wrongly dismissed their case for exceeding the statute of limitations despite an exception that should have saved their claims found within section 16.064.
The statute tolls the deadline to file suit when a petition is dismissed due to “lack of jurisdiction” and refiled in a court of “proper jurisdiction” within 60 days of the judgment becoming final. Judges Jennifer Walker Elrod, James C. Ho and Cory T. Wilson sat on the panel that in May asked the Texas Supreme Court to answer two questions:
- 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?
- Did plaintiffs file this lawsuit within 60 days of when the prior judgment became “final” for purposes of Texas Civil Practice & Remedies Code § 16.064(a)(2)?
Justice Jeff Boyd, writing for the court, explained the answers are “yes” and “yes.”
“Applying the statute’s plain language, we conclude Section 16.064(a) applies in this case because even if the prior court could have had jurisdiction, it nevertheless dismissed the action ‘because of lack of jurisdiction,’ and the claimants filed this action within 60 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,’” he wrote.
The case’s complex procedural history — which includes the filing of two federal lawsuits, a state court suit that was removed to federal court and a prior trip to the Fifth Circuit — gave rise to the Fifth Circuit’s query to the Texas Supreme Court.
Sanders and Sodrok allege they were injured when a smoke detector activated, despite the absence of smoke or fire on board, and did so at such a high volume that it burst their ear drums, caused their ears to bleed and left them with permanent hearing loss. They first sued in federal court in Houston, but voluntarily dismissed the claims soon after.
In November 2018, they filed suit in federal court in Dallas and added additional defendants — Kidde Technologies and Jamco America, which Sanders and Sodrok allege provided the parts and maintenance for the smoke detector.
The defendants argued Sanders and Sodrok had failed to establish diversity jurisdiction. The court agreed and ordered the flight attendants to refile their complaint, going so far as to suggest in a July 2020 order how they could replead to show diversity jurisdiction existed.
An amended complaint failed to make those necessary changes, and the court dismissed the suit for lack of jurisdiction and failure to comply with a court order.
The flight attendants appealed that ruling to the Fifth Circuit, and a panel affirmed dismissal in August 2021, according to court records.
In November 2021, the flight attendants tried again, this time filing suit in Harris County district court. Boeing and the other defendants removed it to federal court, and then argued it should be dismissed because it was filed after the two-year statute of limitations had run.
That’s when Sanders and Sodrok raised section 16.064 as a defense, arguing limitations had been tolled because the previous case was dismissed for lack of jurisdiction and because they filed the new case less than 60 days after the Fifth Circuit affirmed dismissal and denied their petition for rehearing en banc.
U.S. District Judge Kenneth M. Hoyt disagreed and dismissed the case with prejudice on June 1, 2022.
Judge Hoyt pointed to a 2014 Fifth Circuit ruling for the proposition that section 16.064 only applies in cases where the plaintiff has filed suit in the “wrong court,” holding that requirement was met here because, though the suit was filed in the right court, the flight attendants failed to invoke jurisdiction of that court.
Sanders and Sodrok filed notice of appeal with the Fifth Circuit in June 2022. That panel told the Texas Supreme Court when it sent the certified questions in May that there was no controlling precedent and that there is a divide among the state’s intermediate appellate courts on the issue, too.
“The flight attendants did not file the instant lawsuit until after this court affirmed the district court’s judgment in the previous appeal,” the panel wrote. “The question, then, is when the judgment became final for purposes of Texas law. If the answer is ‘when the district court entered judgment,’ then the savings statute does not apply. But if the answer is ‘when this court denied the flight attendants’ petition for rehearing en banc,’ then the flight attendants have satisfied the refiling condition.”
In a 31-page opinion issued Friday morning, the Texas Supreme Court drilled down on the distinction between a court that “lacks jurisdiction” and one that dismisses a case “because of lack of jurisdiction.” The statute’s “plain language does not support a ‘wrong court’ requirement,” the justices held.
“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 opinion reads. “The requirement is 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.”
In answering the second question, the Texas Supreme Court rejected Boeing’s argument that a dismissal “becomes final” when the court that dismissed the case loses plenary power, regardless of any appeal.
The court agreed with the flight attendants’ interpretation and held that dismissal in this context “becomes final” when a party has exhausted appellate remedies.
“… [T]he 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 and the second action simultaneously,” the Texas Supreme Court held. “And if the claimant prevails on appeal and reverses the dismissal, the second action would have been unnecessary all along.”
Sanders and Sodrok are represented by Joshua P. Davis of Houston.
Kidde Technologies is represented by Geffrey W. Anderson and Shannon Dugan of Anderson & Riddle.
Jamco America is represented by Steven Domonic Sanfelippo, Gary Swaim and Alex Joseph Whitman of Cunningham Swaim.
The case number in the Texas Supreme Court is 23-0388. The case number in the Fifth Circuit is 22-20317.