## 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 392N D

JUDICIAL DISTRICT COURT

HENDERSON COUNTY, TE XAS

MEMORANDUM OPINION This appeal present s 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 stat ute 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.

B ACKGROUND On May 1, 2015, on a highway n ear 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 Louisiana2

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 l aw 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 Sept ember 27, 2017. This proceeding followed.

S UMMARY J UDGMENT In his sole issue, Brandon contends that the trial court erred by applying Louisiana law to questions regarding the statute of l imitations and by granting Ivie’s summary judgment motion.
Standar d 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. T EX

. R.
C IV

. 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 judgme nt 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 j udgment ruling de novo. Natividad v. Alexis, Inc ., 875 S.W.2d
69 5 , 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
resolvi ng 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 cou ld 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 a nd 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 r ight of action incorporates a n express3

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 [1 st Dist.] 200 3 , pet. denied). Under Texas conflict of law principles, courts apply non

4th substantive 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 (5 th Cir. 1981).
Discussion The collision giving rise to this cause of action occ urred 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
limitation s 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 limitation s sta tute 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 cour ts , 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 inte rest analysis” or the
Restatement’s “significant relationship .” As Ivie notes, t hese methodologies employ an issue by issue analysis of the relevant policies and interests of each potentially concerned state. The automatic application of the procedural l aw 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 applica tion 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 those4

interests and policies. He does not poi nt 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 i nterests 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 de clared 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 . Sub ject 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 exceptio n 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 limitation s barred Brandon’s suit against Ivie

. We sustain Brandon’s sole issue.

D ISPOSITION Because the tri al court erred by granting summary judgment in favor of Ivie, t he summary judgment is reversed and the cause is remanded to the trial court.

B ILL B ASS Justice

Opinion delivered August 22, 2018. Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Reti red 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 CH ILDREN, 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 sa me 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

proc eedings 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 consiste d of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,

s itting by assignment.