district court granted applebee's motion for summary judgment on statute of limitations defense in the district court's decision that district court denied appellants tolling the tolling arguments appellant bring this matter up on appeal to reverse the district court's decision every minute remand this case back to district court for further proceedings there are three issues before the court all of which involve the towing doctrines two of which are statutory and the other is recognized by common mom a brief overview of these issues are as follows section sixteen point zero six three also referred to as the absentee statute toles the statue of limitations when a person who a cause of action is maintain is absent from the state of texas under issue two section sixteen point zero six four also referred to as the savings statute tolls the statue of limitations when the first action is dismissed for a lack of jurisdiction but is refiled as the same action in the second court within sixty days of the at the dismissal being final finally under the third issue the the court needs to consider the application of whether the doctrine of equitable tolling applies to this case again the district court ruled against the appellant on all three tolling arguments  appeal to fully understand the gravity of appellants arguments it is important for the court to hear a brief overview of the material facts historically there has been two lawsuits filed by that balance which interplay with one another for just for discussion purposes i will for refer to the first matter as the state court matter and as the end is the second case i refer to as the federal court matter as as i will point out in my summary there's been an overlap between the two late in two thousand and five the app the appellant's discovered a massive fraud arising from an oil and gas ponzi scheme which appellants have alleged involved the individual members gave bria a power of attorney serving as their agent to prosecute claims against the applebee's appellants acting through bria filed their original petition in sta special appearance contesting personal jurisdiction two they filed a plea to the jurist jackson contesting subject matter jurisdiction and three they objected to depositions based on the fact that the i had conference skated all the records and the sham related into t s need to be put into play bankruptcy after around this time the court was abated this is again the state court lawsuit it was abated for three and a appleby's plea to the jurisdiction giving bria the proper investment vehicle for the members to prosecute their claims approximately one year later the applebee's asked the court to rehear the jurisdiction to which the state court dismissed the lawsuit shortly thereafter appellants client timely filed their notice of appeal in the state court system there are a week later appeals had notified the appellant's that the the order dismissing the case was not final there was some counter claim still remaining in the state court those are resolved a about a month and a half later making that original order final now during this time and this is where there you get some sort of overlap you have in the state court matter the brain going through the individual opponents going through bria appeal the ruling that bria did not have jurisdiction they file a lawsuit neighing in naming themselves individually in the federal court matter the state of the court of appeals up held the trial court's decision denied the jurisdiction of bria and that decision was by the court of appeals on august twenty third two thousand and twelve and the reason that's important is because scuse me that's august fifteenth two thousand and thirteen the that court of appeals and this is relevant later in the argument that court of appeals was resolved one year after the individual appellants filed their claim in federal law in federal court the name naming themselves individually in light of that procedural history i'd like to address the equitable tolling argument  result in this case you have two hundred thirty eight aggrieved who have waited years to litigate their claims cooperated with the courts fully participated in the legal system and then after six years  told that their claims are stale because the investment vehicle she had made the litigation vehicle to which they're prosecuting their claims was deficient when you contrast that with the extraordinary circumstances of this case  the record reflects this the f b i had confiscated all the records there's no dispute that the apple e's the appellant's this kate this case could not be adjudicated or prosecuted during the time the lawsuit in the equitable tolling analysis the court should ask two fundamental questions did the first question is did the party have noticed of the claims and issues in the answer to that question is absolutely yes apple leaves were fully engaged in this lawsuit from the very beginning as i explained in the state law court also they filed that pleaded the jurisdiction they filed the special appearance which is a objecting to personal jurisdiction and moreover they objected to tendering themselves for deposition because of the bankruptcy is in the f b i records so in terms of having signed a power of attorney giving the specific purpose to prosecute their claims there was no other purpose for bria this isn't an association is just standing by itself it was formed in and formed with  specific purpose to adjudicate appellants claims it was there anything about the way in which this bria thing was set up that precluded whoever was acting on behalf of free and presumably the lawyer from filing the lawsuit in the names of the individual plaintiffs i mean it wasn't the creation documents did not require the lawsuit to be filed in the name of bria it was simply a management device right that's correct no it could have been filed in the name of all the individual plaintiffs as well as in the name of korea you're absolutely correct on that point your honor and nothing prevented the  individuals from filing a separate lawsuit i think that somehow i mean i'm not suggesting that they should have just ignored the machinery i'm saying that whoever had the power whoever had the authority to act on behalf of bria could have filed the first lawsuit and the names of the individuals involved that's correct nothing preventing them from doing that and so  process and we have a court order denying their plea to the jurisdiction so at that point unequivocally the appellant's the individuals have a reasonable belief that the  not only had the authority but legally had the authority and was properly adjudicating the claims and that was sort of reaffirmed by the district court when it does neither plea to jurisdiction so at that point there's there's  the case appears to be being prosecuted appropriately in light of the just to kind of conclude on my equitable tolling you have in this case and this is be a very appropriate time for the court to step in and say that they're used their claims should be told and the equitable towing doctrine in the second issue it's the it's under section sixteen point zero six four  the texas saving statute and the the way the this saving statute works as it says if if if the party files a lawsuit and that lawsuit is dismissed for lack of jurisdiction as long as it files the same action in the appropriate court that within sixty days of it being dismissed then the claims are told from the original lawsuit to the second lawsuit but isn't that one of the claimant house on the wrong court you don't have that and so in that circumstance those claims are told they are treated as a centrally a resident out of the state and and there is nowhere in the record that the  aptly particular mcentire only mcentire there is no evidence in the record to conclusively prove that he was not that he was present in the state of texas they didn't they totally ignore that argument they tory totally ignored that evidence and they just basically took the position that the the statute does not apply to nonresidents was which is inconsistent with jackson versus spears which is a case that comes out of this this court there's a subtle argument to it that even if you have that situation where they come to the state of texas and outside resident may please the court the appellant's in this case have failed to demonstrate any error on the part of the district court which properly rejected each of the three tolling theory is put forth by  appellants to revive this statute of limitations and repose these issues were properly considered by the district court and rejected principally because none of the three theories pleaded by the  llants demonstrated any reason why suit had not been filed timely in the case these issues were briefed and considered by the court on a motion to dismiss basis then a motion for summary judgment by the magistrate and then objections were filed by the appellants and then the district judge that thereafter ruled on those objections and adopted the position of the magi apple lees are merely nonresident defendants there they are not hard to find they have responded to the state court lawsuit they responded to this this federal court lawsuit without any jurisdictional objection and the texas supreme court has been extremely direct and clear in what law plus a sixteen point zero six three does not apply to told the period of limitations for nonresident defendants that are subject to the texas long arm statute the appellants have pleaded the and use the texas long arm statute not only in the state court action but likewise in this federal action that was f the eastern district of texas so legally that statute has no application here but practically it has no application out because the opponents have not demonstrated any reason why the inability to serve or the defendants delayed their timely filing of the lawsuit on behalf of the individual point us as to sixteen point zero six for the purpose of that statute is as judge clement pointed out is for a a plaintiff who properly commences in timely commences suit in a wrong court or a wrong form and somehow  later suffers an adverse ruling on jurisdiction dismissing the case because this jurisdiction can be taken up at any time of the divorce case that was mentioned just a moment ago the lawyer filed suit it went all the way to the texas supreme court and at that point the case was dismissed for jurisdictional grounds the court there applied sixteen point zero six four because it was the same suit it was the same plaintiff and tolling applied under sixteen po for that statute has no application in this proceeding the number for the the primary reason is that the statute requires that the case be the same no appellants in their brief as well as in argument have interchangeably referred to there the up balance filing the state court action that's not accurate bria was the sole plaintiff in the state court action this federal court action was filed in the name of the individual plaintiffs bria was not a party so for that reason alone sixteen point zero six four  in addition sixteen point zero six forward is predicated on the notion that one properly commits a suit in a forum which is determined later to be the wrong forum tolling would apply to individual plaintiffs was cognisable it in state court as it is cognizable in federal court the reality is the suit itself was defective the form of the suit was defective because they filed as an unincorporated association there was no subject matter jurisdiction bria was put on notice in the state court action in two thousand and six of that defect in that lawsuit but throughout th entire time from the time that notice was sued had not been commenced in the name of the individual plaintiffs until this case was filed in two thousand and twelve some six years and well after the expiration of the statute of limitations that is from two thousand and six forward that is an intentional disregard of jurisdiction like sixteen point zero six three this statute in no way  offers appellants any justification for a while sue wasn't timely file they we have argued over whether it's the same and what courts have treated as to those interpretations but factually  offered this court any justification as to why the suit was not timely cummins that theory fails legally but practically it fails to and that is what the district court found repeatedly as to each of these three tolling that there was never any explanation or justification for the plaintiffs not filing timely suit well who said it was because the f b i had the records well like to deal with that because  directly let me address that because the appellants have made principally in their equitable tolling argument use of the f b i had the records there was an abatement for a lengthy period of time in  in actuality as to the f b i records they did have them but that in no way justifies in the district court specifically addressed this that in no way justifies the failure to timely file suit it may have you know the availability of those documents may have been relevant as to whether the suit could go forward but it in no way justified the failure to file suit on behalf of the individual points do you think they should have up that there was a significant defect and an absence of subject matter jurisdiction and yet they did not at any time come into lawsuit on behalf of the individual plans and the abatement is similar they have  utilized to the existence of an abatement but i asked the court to look closely at the record the appellants have not offered any record evidence of the period of that abatement which is actually was only a period of thirty days that commenced in two thousand and eight it was not a four year abatement but notwithstanding as the district court found notwithstanding any abatement or the existence of f b i records the district court made very clear it was a simple to timely file suit the existence of limitations was werry well known to the state court the appellant's in this case did on one occasion file suit in behalf of the individual points in state court the state court struck that amendment and struck those parties that issue was not a peep in state court they knew well the difficulties they had with the statute of limitations and they sought refuge in federal court with a new judge unfamiliar with the facts in state court and interestingly in the suit that was filed the eastern district of texas on behalf of the individual plaintiffs there exhibit a which lists all of the individuals all the claimants and the transactions and omitted the transaction for each of the individual points only after we filed a motion to dismiss and for further clarification in the district court in this case ordered them to do that they had to remove the redactions from that chart which obviously rizzi revealed the the obvious statute of limitations problems in the case so the appellant's were entirely entitled to seek a parallel proceeding in federal court but we are talking about tolling in the commencement of statute of limitations and the apple leaders believe that the appellant's chose to go to federal court in order to get a new  judge unfamiliar with the facts in the state court action because the obvious steps in the taisha existed in state court lastly as to equitable tolling the cases are clear that is an extreme and rare remedy and principally although the appellants have sided federal cases from the at actually it should be state law tolling but the cases are much the same in terms of the analysis equitable tolling is not a casual grant to to those that seek it it requires extreme facts and most of the cases require proof that the other side of the defendant's somehow concealed or acted improperly to deceive the plaintiffs about the existence of that here there's been no there is no evidence in the record and that simply didn't happen in fact in two thousand and six the police put the appellants on notice of the problem with their state court lawsuit and they made their decision not to file not for one month not for two months but for more than six years only after receiving an adverse ruling from the state court state trial court did they then file this parallel  tensions in the statute propose were vile up worry sufficient explanation for the failure to file on behalf of the individuals the proper pardons they would have revealed those rather than attempting to keep them from the district court but once they were ordered to replete and put those transactions dates it became obvious both the magistrate in the district court at length went through each of the three tolling theories that have been offered by a balance and legally determined that the elements had not been met but practically determined that none of the three sixteen zero six three zero six four equitable tolling justified or contracts in texas so why wouldn't these allegations require you to refute this this attempt to apply sixteen zero three zero sixty zero sixty three other words why would you have to refute that if he had enough out made enough allegations in his pleadings with respect to mcintyre's presence in texas so i can understand the question why would point zero six three her current be saucy to the tuesday texas supreme court cases that are in our brief state that if the long arm statute applies the nonresidents are deemed present in the state therefore sixteen simply the case with in this case there was no contest to jurisdiction at all the apple lease were served and responded in the state court only mr mcintyre filed a a challenge to the special appearance personal jurisdiction the other defended happily in this case did not but the important thing although the appellants have made issue with the contest to jurisdiction pleadings in both cases the state court in this that they a veiled themselves of the long arm statute and under the texas supreme court cases if that statute applies which appellants have a that it does in both this case and the state court case sixteen point zero six three has no application as they are deemed present in the state for purposes of tolling police believe that the district court there really considered these issues on three separate occasions they were fully briefed by the parties and the court was clear that the opponents had demonstrated no justification for time when filing suit and we asked that this court affirmed the district court thank you i'd like to start with section sixteen point zero six for the savings statute and the reason i want to start with that in this is coming straight from the fifth circuit and the fifth circuit is noted legislative history and the point i want to make is when they're analyzing cases under this statute they continually reference the legislative history and the leisure legislative history says this is manifest that the act is remedial and every essence of it should therefore be given a liberal construction with focus on the effect or the a judgment or order and not its form by the name of which it is called now the reason that is important is because when we go back to the state court last and and the plea of jurisdiction is granted that in essence dismiss the individual parties case i mean the is there is because it's prosecuting the claims of the individual appellants and so the effect of that dismissal order essentially dismissed their within sixty days of that appeal so there's there's absolutely no question we we filed the second lawsuit within sixty days in the so you have to look at what the effect of the order was coming from the trial court the appellant's timely filed their second complaint in the federal court and therefore section sixteen point zero six four should apply in reference to sixteen point zero six three jurisdiction over me and that special appearance never got ruled on it was out there counsel said he said if i lose on this plea i'm going to i'm going to submit that special parents we're going to get back tire out here and so he knew that that was that was  ammo in the state court case so they were well aware of it there was more ammunition that they were going to use to keep him from the state court lawsuit so they continually point to the you know therefore it doesn't apply totally ignoring the the verifications special appearances in the state court the thing that here's what bothers me the most and i think it was and it was an abuse of discretion even though this is a denote a review is the only way that this court can up hold the district court's decision is if they totally ignore everything that's gone up later you know they granted but then you have to ignore the f b i records that ignore the abatement that's the only way that this court can affirm the district court's decision and it's just it would be terribly unfair and it would be