NO. 12-17-00344-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DESMOND BRANDON SR.,

INDIVIDUALLY AND AS NEXT 

FRIEND TO D.B., JR. AND L.B., 

MINOR CHILDREN, 

APPELLANT

V.

JUSTIN THOMAS IVIE,

APPELLEE

§

§

§

APPEAL FROM THE 392ND 

JUDICIAL DISTRICT COURT

HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

This appeal presents a choice-of-law question that requires the court to determine 

whether to apply the Louisiana or Texas statute of limitations. The trial court decided that the 

Louisiana one year statute applied and granted Justin Thomas Ivie’s motion for summary 

judgment. In one issue, Desmond Brandon, Sr., individually and as next friend to D.B., JR. and 

L.B., minor children, contends the trial court erred in granting summary judgment. We reverse 

and remand.

BACKGROUND

On May 1, 2015, on a highway near Boyce, Louisiana, Brandon was stopped in traffic 

with his two minor children. Ivie failed to stop his vehicle before it crashed into the back of 

Brandon’s car.

Brandon filed suit on May 1, 2017, to recover for personal injuries and property damage 

sustained in the crash. He filed suit in the county of Ivie’s residence and in the State of residence 

of both Brandon and Ivie. Ivie pleaded limitations and moved for the application of Louisiana 
2

law to questions of liability. On August 8, 2017, the trial court ruled that Louisiana law would 

govern the substantive law in the case and Texas law would govern all procedural matters.

Ivie later moved for summary judgment contending that Louisiana’s one year statute of 

limitations barred Brandon’s suit. The trial court granted Ivie’s motion and dismissed Brandon’s

action, with prejudice, on September 27, 2017. This proceeding followed.

SUMMARY JUDGMENT

In his sole issue, Brandon contends that the trial court erred by applying Louisiana law to 

questions regarding the statute of limitations and by granting Ivie’s summary judgment motion.

Standard of Review

A party moving for traditional summary judgment bears the burden of showing that no 

genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R.

CIV. P. 166a(c). A trial court should grant a defendant’s motion for summary judgment if the 

defendant establishes all the elements of an affirmative defense as a matter of law. American 

Tobacco Co., Inc. v. Grimmell, 951 S. W.2d 420, 425 (Tex. 1997). Once the defendant 

establishes his right to summary judgment as a matter of law, the burden shifts to the plaintiff to 

present evidence raising a genuine issue of material fact. Simulis, L.L.C. v. Gen. Elec. Capital 

Corp., 439 S.W.3d 571, 575 (Tex. App.—Houston [14th Dist.] 2014, no pet.). 

We review a summary judgment ruling de novo. Natividad v. Alexis, Inc., 875 S.W.2d 

695, 699 (Tex. 1994). When reviewing a summary judgment ruling, we must examine the entire 

record in the light most favorable to the nonmovant, indulging every reasonable inference and 

resolving any doubts against the motion. Yancy v. United Surgical Partners Int’l, Inc., 236 

S.W.3d 778, 782 (Tex. 2007). We credit evidence favorable to the nonmovant if reasonable 

jurors could do so, and disregard contrary evidence unless reasonable jurors could not. Mann 

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

Applicable Law

As a general rule, questions of substantive law are governed by the laws of the state 

where the cause of action arose, but matters of remedy and procedure are governed by the laws 

of the state where the action is brought. California v. Copus, 158 Tex. 196, 309 S.W.2d 227,

230 (1958). When, however, the statute that creates a right of action incorporates an express 
3

limitation upon the time when the suit may be brought, the limitation is considered substantive. 

Id. at 231.

What is a matter of substance and what is a matter of procedure is determined by the law 

of the forum state. Penwell Corp. v. Ken Assoc., Inc., 123 S.W.3d 756, 764 (Tex. App.—

Houston [1st Dist.] 2003, pet. denied). Under Texas conflict of law principles, courts apply non4thsubstantive procedural rules of the forum state. See Arkoma Basin Exploration Co., Inc. v. 

FMF Assocs. 1990-A-Ltd., 249 S.W.3d 380, 387 (Tex. 2008). In Texas, statutes of limitation 

are procedural. Baker Hughes, Inc., v. Keco R&D, Inc., 12 S.W.3d 1, 4 (Tex. 1999); see Ellis 

v. Great Southwestern Corp., 646 F.2d 1099, 1111 (5th Cir. 1981).

Discussion

The collision giving rise to this cause of action occurred in Louisiana. Both Brandon and 

Ivie reside in Texas. Brandon filed suit on May 1, 2017 within two years of the accident and 

therefore within the Texas two year statute of limitations, but beyond the one year statute of 

limitations applicable under Louisiana law.

The trial court ruled on August 8, 2017 that Louisiana substantive law governed the case 

and Texas law applied to questions of procedure. Nevertheless, on September 27, 2017, the trial 

court held that the Louisiana one year limitations statute applied and granted Ivie’s motion for 

summary judgment.

Ivie, in his brief, provides an excellent summary of the choice of law alternatives to the 

prevailing rule applying the law of the forum in procedural questions. He acknowledges that

Texas courts, as well as a majority of jurisdictions, apply the statute of limitations of the forum 

state. Ivie urges that we abandon the mechanical rules of the traditional theory in favor of more 

flexible choice-of-law methodologies such as the “governmental interest analysis” or the 

Restatement’s “significant relationship.” As Ivie notes, these methodologies employ an issue by 

issue analysis of the relevant policies and interests of each potentially concerned state. The 

automatic application of the procedural law of the forum, he argues, “does not allow a 

consideration of the particular facts and circumstances of each case,” and “often undermines the 

interests and policies of the interested states.”

Ivie, however, does not explain how, in this case, the application of the law of the forum 

undermines the interests and policies of the interested states. Nor does he identify particular 

facts and circumstances that should be considered in this case to avoid undermining those 
4

interests and policies. He does not point to an interest or policy undermined by the application 

by a Texas court of the Texas statute of limitations in a lawsuit between two Texas residents 

involving a Louisiana collision. Nor does he provide us with an analysis of the relevant policies 

and interests of each concerned state that would support the substitution of the procedural law of 

the forum by the more flexible choice-of-law approach he advocates.

As an intermediate appellate court, we are compelled to apply the established Texas law 

as declared by our supreme court. It appears well settled that Texas courts apply the forum’s law 

for procedural questions. Penny v. Powell, 162 Tex. 497, 347 S.W.2d 601, 602 (Tex. 1961); 

Arkoma Basin, 249 S.W.3d at 387; PennWell Corp, 123 S.W.3d at 763. Subject to the Copus

exception identified previously, Texas considers statutes of limitations procedural. Baker 

Hughes, 12 S.W.3d at 4; see Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 141 

(Tex. 2010); Ellis, 646 F.2d at 1099. The Copus exception does not apply to this case. See

Copus, 309 S.W.2d at 231. Therefore, the trial court erred in holding that the Louisiana one year 

statute of limitations barred Brandon’s suit against Ivie. We sustain Brandon’s sole issue.

DISPOSITION

Because the trial court erred by granting summary judgment in favor of Ivie, the 

summary judgment is reversed and the cause is remanded to the trial court.

BILL BASS

Justice

Opinion delivered August 22, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 22, 2018

NO. 12-17-00344-CV

DESMOND BRANDON SR., INDIVIDUALLY AND AS

NEXT FRIEND TO D.B., JR. AND L.B., MINOR CHILDREN,

Appellant

V.

JUSTIN THOMAS IVIE,

Appellee

Appeal from the 392nd District Court 

of Henderson County, Texas (Tr.Ct.No. CV17-0201-392)

THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, because it is the opinion of this court that there was error 

in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court 

that the judgment be reversed and the cause remanded to the trial court for further 

proceedings and that all costs of this appeal are hereby adjudged against the Appellee, JUSTIN 

THOMAS IVIE, in accordance with the opinion of this court; and that this decision be certified 

to the court below for observance.

Bill Bass, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,

sitting by assignment.