## In the Court of Appeals Second Appel late District of Texas

at Fort Worth

___________________________ No. 02

- 21

- 00010

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048

- 322104

- 20

Before Womack, Wallach, and Wal ker, JJ. Memorandum Opinion b y Justice Wal ker Dissenting Memorandum Opinion by Justice Womack 

### A LEXANDER 

### F RASIER AND 

### H ITOMI 

### F RASIER 

### , Appellants

V


### . K ATHLEEN 

### A NN 

### S HAFEEQ 

### , Appellee2 MEMORANDUM OPINION In this appeal from a summary judgment, we are a sked a discrete legal question
based on und isputed facts: I f a limi tation s period expires o n a Sat urday and the ne xt
M o nda y is a national holiday, is the period extended to Tuesday even though the
county ’ s offices were open for business on the national holiday ? We conclude that
limitations was ext ended to Tuesday and reverse the trial court ’ s sum mary judgment concluding the opposite

. I. BACKGROUND Appellants Alexander and Hitomi Frasier were in a car accident with appellee
Kathleen Ann Shafeeq on November 9, 2017 , in T arrant Cou nty
. U nder the applicable statute of limitations, the Frasier s ’ per sonal

- injury suit was due no la ter than November 9, 2019, which was a Saturday. See Tex. Civ. Prac. & Re m. Code Ann. § 16.003(a). Monday, November 11, 2019 , was Vete rans Day , whi ch the Texas
Le g islature has classified as a “ national holiday

. . . d edicat ed to the cause of world peace and to honoring the veterans of all wars in which Texans and other Americans have fought. ” Tex. Gov ’ t Code Ann. § 662.003(a)( 7)

. The F rasiers filed suit on
Tuesda y, November 12, 2019, in Tarrant County. Shafeeq ans wered the petition and r aised the affirmative def ense of limitations

. She then filed a traditional motion for summary judgment on her defense and argued
that b e cause the Ta rrant County Commis sioners Court had determined that county
offices would be open on Vete rans Day, the Frasiers ’ limitations period was not3

extended to the next day

— November 12

— under either Rule 4 or the statutory
limitations extension

. See Tex. Civ. P r ac. & Rem. C ode Ann. § 16.072; Tex. R. Civ.
P. 4. The Frasiers res ponded that because the Texas Legislature ha d expressly provided that Veterans Day is a “ national holiday, ” Rule 4 extended their deadline to file suit to the next day that was no t a legal hol iday

— Nove mber 12, 2019. Tex. Gov ’ t Code Ann. § 662.00 3 (a)(7). The trial cou rt granted Shafeeq ’ s motion and dismissed
the Frasiers ’ individ ual c laims against her. 1
II. DISCUSSION
A. S TANDARD OF R EVIEW We review the tr

ial court ’ s summary ju dgment de novo

. Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481 (Tex. 2015). We take as true all e vidence favorable to the
Frasiers and we indulge every reasonable inference and resolve any doubt s in their
favor. Id.
A traditiona l motion for s ummary j u dgmen t may be granted only when the

movant

— Shafeeq

— est ablishes that there are no genuine issues of material fact and
that she is entitled to judgment as a matter of law. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fi

elding , 28 9 S.W.3d 844, 848 (Tex . 2009 ). Because Shafeeq moved for summary judgment on the basis of limitation s, she had the burden to conclusively

1 The Frasie rs had al so raised claims agains t S hafeeq as next friends for their son; however, the se claims were severed from the Fra siers ’ individual claims and were not affected by the trial court ’ s sum mary

- judg ment order.4

establish the defen se by showi ng when the cause o f action accrued and that suit was filed outside the applicable limi tations period

. KPMG Pe at M arwick v. Harrison Cnty. Hous. Fin. Corp. , 988 S. W.2d 746 , 748 (Tex. 1999 ) ; Boyd v. Kallam , 15 2 S.W.3d 670, 683 (Tex. App.

— Fort Worth 2004 ), pet s. denied , 232 S.W. 3d 774 , 776 (Tex. 2007)

. I f she
did so, the burden shi ft ed to the Fra siers to raise a fact issue regarding an applicable
avoidance of l imita tions

. See KPMG Peat Marwic k , 988 S.W.2d at 7 48.
B
. T IME C ALCULATION AND E XTENSION Rule 4 governs time computation for “ any period of time pres cribed or allowed by [the rules of ci vi l procedure], by order of co urt, or by any applicable statute

. ” Tex. R.
Civ. P. 4 (emp hasis added)

. T hus, Rule 4 ap plies to the calculation of a limitations period. Martine z v. Windso r Park Dev. Co. , 833 S.W.2d 950 , 951 (Tex. 1992) ; Hughes v. Autry , 874 S.W.2d 890, 894 (Tex. App.

— Austin 199 4, no writ) (per curiam)

. The rule
dir ects that the first day of the t ime p eri od is not counted but that the last day is
included unless the last day “ is a Saturday , Sunday, or legal holiday, ” wh ich exten ds the operative period to the end o f the next d ay that is not a Saturday , Sunday, or legal
ho liday. T ex. R. Civ. P. 4.
Sec tio n 16.072 , which al so applies to limitations periods , is a littl e differ ent. It provides that if the last day of a limitation s period falls on a “ Saturday, Sunday, or holiday , ” the period is “ extended to include the next day that the county offices are
ope n for bu siness

. ” Tex. Civ. Prac. & Rem. Code Ann. § 16.072

. Section 16.072 is5

“ somewhat broader ” than Rule 4 because Section 16.072 ’ s application “ is not
restricted to lega l holidays. ” Martine z , 833 S.W.2d at 95 1

. Even so, Secti on 16.072 and Rule 4 s ho uld be construed simil arly because both

“ extend time periods for taking action w he n the period ends on weekends and holidays. ” Id.
C
. A PPLICATION On appeal , the Frasi ers contend that Rule 4 extended the limitations period to
N ovember 12 bec ause a le g al holiday, which include s national holidays set by the Legislature, is not included in time computations. And al th ough they initially seemed

to concede th at limitations expired on Veteran s Da y under Section 16.072 because the

co unty offic es were open , t he Frasiers later argue d that Section 16.072 includes the same holidays contemplated under Rule 4 and did extend the limitations period

. In

sum , t he Frasiers assert that under either Rule 4 o r Sectio n 16.072, Nove mber 11 is not included in the computation of the end of the ir limitations period because
Ve terans Day is a legislatively declared holiday

. We note that th e Frasiers did not make their argument based on Section 16.0 72
in the trial cou rt in re sponse to Shafeeq ’ s summary

- judgment motion and that the majority of th eir appellate argument is focused on Rule 4 . But the Frasiers asserted in
the trial court that th ey had filed their suit timely , thereby necessarily arguing th at Shafeeq had not con clusively established that they had filed their suit out side of the
limita tions peri od

. The Frasiers continue to raise that issue on appeal in attacking the6

tr ial court ’ s summary judgment

. Be cau se the trial court ’ s sum mary judgment must stand or fall on its own merits, the Frasiers may challenge on appeal the l egal
sufficie ncy of the summary

- judgment grounds presented by Shafeeq

— Rul e 4 a nd
Section 16.072. See Amedisys, Inc. v. Kingwood Home Heal th Care, LLC

, 437 S.W.3d 5 07, 511 (Tex. 2014) ; c

f. Li v. Pemberton Park Cmty. Ass ’ n , 631 S.W.3d 701, 704

– 05 (Tex.
20 21) ( “ And while ap p ellate courts ‘ do not consider is sues that were not rais ed .

. . below, ’ parties may ‘ con struct new argument s in support of issues ’ that were rais ed. ” (qu oting Greene v. Farmers Ins. Exch. , 446 S.W.3d 761, 764 n.4 (Tex. 2014)) )

. Ag ain, the Legislature ha s identified Veterans Day as a national holiday and, thus, as a legal holiday. Tex. Gov ’ t Code Ann. § § 662.003 (a)(7 ), 662 .0 21(1)

. S ee generally Cummings v. Billman , 629 S.W.3d 297, 299 n.1 (Tex. App.

— Fort Worth 2020,

n o pet.) ( concludin g , in case from De nton County, that motion to reinstate was timely filed on 31st day because 30th day fell on Veterans Day ) . The Texas Supreme C ourt has held that a leg

islat iv ely declared holiday for state employees is “ a legal holiday for procedural purp oses within the meaning of Rule 4. ” Mid

- Continent Re

f rigerator Co. v.
Tackett , 584 S .W.2d 705, 706 (Tex. 1979) ; see also Dorchester Master Ltd. P ’ sh ip v. Hunt

, 790 S.W.2d 552, 552

– 53 (Tex. 1990) ; Johnson v. Tex. Employers Ins. Ass ’ n , 67 4 S.W.2d 761, 762 ( Tex. 1984) ; Blackman v. Hous. A uth. of City of Dall

. , 254 S.W.2d 103, 10 4

– 06 ( Tex. 1953) ; Old Repu blic Ins. Co. v . Wu ensche , 782 S.W.2d 346, 348 (Tex. Ap p.

— Fort Worth 1989, writ denied)

. Thus, it seems clear that under Ru le 4, the Frasier s ’ suit7

was timel y filed on November 12 because that was the “ next day which [was] not a Saturday, Sunday, or legal holiday. ” Tex. R. Civ. P. 4.
The wrinkle in this ca se aris es because the Ta rran t County Commissioners
Court , contrary to m any other counties, 2 has declare d that its offices will be open on Veterans Day. Section 16.072 , therefore, would seem to di ctate t hat the Frasier s w ere required to file suit on Novemb er 11 because the count y offices w ere “ open for
business

. ” Tex. Civ. Prac. & Rem. Code Ann. § 16.072. The Frasier s succinctly
illu st rate the practical complications that would arise under an int erpretation that
would render their suit timely under R u le 4 but time

- barred under S ection 16. 072: If this Court adopts the position of Shafeeq in this case, then the la s t day of any statute of limitations (and perhaps deadlines under other statutes as wel l), would vary from county to county. It would vary dependi ng on which county the i n cident su ed upon occurred. It would depend on how many Defendants are being s ued and the residences of each of those Defendants. Each of these factors in fluence the appr opriate venue for a suit and, therefore, would influence a d etermination of the l ast day of a statute of limitations [ , ] which will be different in each case. In s um, an identical event in two d ifferent counties in the sta te would have t wo different statut es of limitation even though the state has only one sta t u t e of limitation for tha t t yp e of even t. I f an attorney woke up on a day a fter a legal holiday and realiz ed that a county of p r oper venu e was open for business on that legal holiday, he could pick a ny other

2 For exam ple, Wichita, Bell, Libert y, and Wi lliamson C ountie s recogn ize Ve te r ans Day as a holiday

. See , e.g. , Kadow v. Grau erh olz

, No. 02

- 20

- 00044

- CV, 202 1 WL 73 3302, at *6 (Tex. App.

— Fort Worth F eb. 25, 2021, no pet.) (mem. op.) (Wic hita Cou nty); Long v. Yurrick , 319 S.W.3d 9 44, 946 (Tex. App.

— Austin 2010, n o pet .) ( Bell Count

y ) ; In re J.B. , No. 09

- 07

- 625 CV , 200 8 WL 4735434, at *2 (Tex. App.

— Beaumont Oct. 30, 2008, no pet.) (mem. op.) (Liberty Cou nty); Barnes v. Sulak , No. 03

- 0 1

- 00159

- CV, 2002 WL 1804912, at *8 (Tex. App.

— Aust in Aug. 8, 2002, pet. deni ed) (no t de signated for p ub l ication) (Will iamson Count y).8

cou n ty, say Cherokee County, to file in the ne xt da y so long as that county had not be en ope n for business on the legal holiday. I f it is a
cou nty of imp roper venue, it will probably t hen be transferred to a county of p roper v enue. But it will n everth e less be timely filed under the law that Shafeeq is tr ying to create.
G iven the Texas Supreme Court ’ s direction that Rule 4 and Section 16.072 should be

s imilarly construed and given th at tol ling provisions rela ting to lim itation s pe riods should be liberally construed , we hold that the Frasie rs timely filed suit on
November 12

. See Martine z , 833 S.W.2d at 95 1 ; Vale v. Ryan , 809 S.W.2d 324, 326 (Tex. App.

—

A u stin 1991, no writ).
A contr ary result would be nonsensical , leading to ven ue shopping based on the va garies of county politics. See g enerally Silguero v. CSL Plasma, Inc. , 579 S.W.3d 53 , 59 (Tex. 2019) ( “ It is the Legislature ’ s prer ogative to enact s t atute s; it is the judiciary ’ s

r esponsibility to interpret those statutes accor ding to the language the Legislature used, absent a conte xt indicating a different m eaning or the result of the plain meaning of the language yielding absurd or nonsensi cal resu l t s. ” ). And it would allow

coun ties to alter , on an ad hoc basis, wh ich days a re considered procedural and statutory holidays

. In a state with 254 counties, such a result would be absurd.
A further problem would arise if we concluded that the Frasiers s hould have electronically filed their petition on November 11 . If a document is elect ronically

trans mitted on a S aturday, Sunday, or lega l ho liday, the document is considered filed the next day that is not a Saturday, Su nd ay, or legal ho liday. See Tex. R

. Civ

. P. 21(f)(5)(A). Therefo re, even if the Frasiers had electronically fil ed their petition on9

November 11, 3 it would still have been considered filed on Nove mber 12 b ecause November 11 was a legal holiday. See Tex. G p ov ’ t Code Ann. § 662.021 (defini n g legal holiday as national and state holiday s as designated by the Legi slature ). In sh ort, the petition arguably would still have been un timely filed if it had been e lectro nically

tr a nsmitted on November 11. We recognize , as does the dissenting opini o n , that another intermediate
app ell ate court has held dif ferently , reasoning that our co nclusion here would be

“ absurd

. ” Lowe v. Rivera , 60 S .W.3d 366, 369 (Tex. App

. — Dallas 2001, no pet.). T he
D a llas Court of Appeals held that because Dallas County off i c e s were open on a legislatively de clared national ho liday ( Preside nts Day

) , which was the l ast day of the appellant ’ s limitati ons period, the appellan t was required to file suit on that day under
Section 16.072 to be considered timely filed. 4 Id. at 367

– 7 0

. Th e Dallas Court of Appeals di d not consider Rule 4 in its ana lysi s , and its holding effec tively allows a
county by fiat t o render Rule 4 inapplic able for limitation s pur poses if it opens its

o ff i ces on a Saturday, Sunday, or holiday. As the Frasier s p oint out, this would result
in dif ferent limit ation s period s based on the county of suit . And different re sult s under Rule 4 a nd Section 16.072 would run afoul of the Supreme Court ’ s direction to

constru e them similarly because both “ extend time period s fo r taking action when the

3 T he Frasiers and Sh a fee q elect ronically filed th eir pleadings in this case.

4 Electronic

- filing rules were not enacted until 2013 and , thus, were not part of the D allas Court of Appeal s ’ 2001 analys is

.10

period en ds on weekends and holidays. ” M artinez , 833 S.W.2d at 951 (emphasi s added)

. See generally Robles v. Rivera , No. 05

- 17

- 00733

- CV , 201 8 WL 3120858, at *3 (Tex. App.

— Dallas June 26, 2018, pet . denied) (mem. op.) ( “ [L]ega l ho liday [as used
in Tex. R. Civ. P. 500.5] must mean something other than days when the court is
closed. ” )

. T h us, we respectful ly decline to follow Low e in this case. Finally, we look to the purpose behind S e ction 16.072, which further bolsters

our c o ncl usion. See generally In re J.F

. - G

. , 627 S.W.3d 304, 31 3

– 1 4 & n.34 (Tex . 2021) ( citing Pruski v

. Garcia , 594 S.W.3d 3 22 , 328 & n.2 (Tex. 2020), and recogni zing how an enacted statute changes over time

— the history of l e gi slation as opposed to
l egi slativ e h i story

— may inform statutory interpret ati on by providing c ontext ). The
text of current Section 16.072 was initially enacted in 1977 in respons e to a court of appeals case

—

Fulghum v. Baxley , 219 S.W.2d 1014 , 1015 (Tex. App.

— Dallas 1949, no
wri t)

— which ha d held Rule 4 inappli cabl e t o s tatutes of limitation s and had concluded that if a limitations period ended on a Sunday, the case must be filed on Sunday to avoid the time bar. The Texas Legi slature , specific ally referring to Fulghum , enacted A rt

icle 5539d in the Revised Civ il Stat ute s to “ allow a party to file suit on the first business day following a holiday where the last day of the period of limi tation falls on a holiday. ” House Comm. on Judici ary, Bill Analysis, Tex. H.B. 524, 65th Leg., R. S. (1977). I n other words, the pred ece ssor to Section 16.072 was enact ed to

ensure that Rule 4 applied to the calc ulation of limitations periods. When the Legislature codified the C i vil Prac tice and R e medie s Code in 1985 , A r ticle 5539d11

became Section 16.072 with n o substantive change. Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3258. Section 16.072 has not been amended
since. Accordingly, the Legislatu re intend ed that Saturdays, Sunda ys, and ho lidays occurring at the end of a limit at i ons period not be counted w hether un der Se c tion
16.072 or Rule 4

. A conclusion that Veterans Day be includ ed in the Frasiers ’
limita tions calculation , based on the Commissioners Co urt ’ s holiday declaration
contrary to the Legislature ’ s , would i gnore th e p urpose s of Rule 4 and Section
16. 072

— to toll limitations periods for Saturdays, Sundays, and holidays.
III. CONCLUSION Even though the Fra siers ’ l imitations period expired on Satur day , November 9,

w e conclu de that th e deadline was extended to Tuesday , N o vember 12 , because Monday, Novemb er 11 , was a legal holiday. Shafee q failed to conclusively estab lish
that the Frasiers ’ suit was f iled outside of th at deadline ; therefore, she was not entitled

to summar y judgment on her affirmative defense. We rev ers e t he trial court ’ s order granting s umm ary judgment in favor o f Shafeeq and remand this case for furt her proceedings. See Tex. R . App. P. 43.2(d), 43.3 (a)

.
/s/ Brian Walker
Bria n Walker Justice
Delivered: Febr uary 17, 2022