PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS

OR TOLLING ARGUMENTS
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CAUSE NO. DC-14-10061

JANA WECKERLY IN THE DISTRICT COURT

Plaintiff,


vs 134
TH
JUDICIAL DISTRICT


JERRY JONES, DALLAS
COWBOYS FOOTBALL CLUB LTD.,
LEVI MCCATHERN, AND
MCCATHERN LAW FIRM

Defendants. DALLAS COUNTY, TEXAS

PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN
AVOIDANCE OF THE STATUTE OF LIMITATIONS OR TOLLING ARGUMENTS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW PLAINTIFF Jana Weckerly, and files this her Plaintiffs Brief in Support
of Any of Plaintiffs Pleas in Avoidance of the Statute of Limitations or Tolling Arguments by
which she would show the Court the following:
I.
PROCEDURAL HISTORY
1. On September 8, 2014, Plaintiff filed her Original Petition for sexual assault,
negligence, conspiracy and other causes of action stemming from Defendants conduct on or
about June 2009. On September 10, 2014, Defendants filed a Rule 91a Motion to Dismiss
asserting that Plaintiffs claims were barred in whole or in part by the Texas Statute of
Limitations. On September 22, 2014, Plaintiff filed her First Amended Original Petition with
additional facts for her conspiracy claims which fall within the two year statute of limitations.

FILED
DALLAS COUNTY
9/24/2014 1:01:08 PM
GARY FITZSIMMONS
DISTRICT CLERK
PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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II.
ARGUMENTS AND AUTHORITIES
Conspiracy - Each continued invasion causing loss and damage equals an independent
element for limitations purposes

2. First, Plaintiffs claims for conspiracy include conduct and payments to cover up
Defendants crimes, actions and conduct. Normally, a co-conspirator is jointly and severally
liable for all damages caused by the conspiracy. Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d
922, 926 (Tex. 1979) (Once a conspiracy is proven, each co-conspirator is responsible for all
acts done by any of the conspirators in furtherance of the unlawful combination.).
3. The statute of limitations for conspiracy is two years. See TEX. CIV. PRAC. &
REM.CODE ANN. 16.003(a) (Vernon Supp.1999); Jones v. Hunt Oil Co., 456 S.W.2d 506,
514 (Tex.Civ.App.--Dallas 1970, writ ref'd n.r.e.). [U]nder civil conspiracy, each continued
invasion of the plaintiffs interest causing loss and damage in a conspiracy case is treated as an
independent element for limitations purposes and the two year statute of limitations begins to run
when each independent element arises. Cathey v. First City Bank, 758 S.W.2d 818, 822
(Tex.App.-Corpus Christi 1988, writ denied); see also Harang v. Aetna Life Ins. Co., 400 S.W.2d
810, 813 (Tex.Civ.App.-Houston 1966, writ ref'd n.r.e.).
4. To illustrate the application of limitations and continuing torts, in Mayes v.
Stewart, the court followed the holding in Cathey and demonstrated how Mayes committed
several overt acts in furtherance of the conspiracy occurring after April 2, 1995 (the original tort
was June 1993). Mayes v. Stewart, 11 S.W.3d 440, 453 (Tex. App. Houston [14
th
Dist.] 2000,
pet. denied). Specifically, Mayes committed the following acts regarding a 1993 purchase of a
lottery ticket to further the conspiracy: (1) in October 1995, Ms. Mayes attempted to sell the final
ten years of the lottery installments; (2) in April 1996, Ms. Mayes conveyed real property
PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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purchased with lottery funds; and (3) in 1996, Ms. Mayes wrote checks from the lottery
proceeds. Id, at 453.
5. Thus, under the doctrine of continuing tort, as long as the conduct constituting the
tort is continuing and damages continue to occur, the victims suit is not barred by the statute of
limitations. Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex. App.Austin 1990), revd on other
grounds, 855 S.W.2d 619 (Tex. 1993). In our case, Defendants continued to pay Plaintiff from
2009 through at least July 2013 as part of the cover up, duress and intimidation for not reporting
the sexual assault upon her to police. Therefore, Plaintiffs conspiracy claims are within the
statute of limitations until at least July 2015 and should be allowed to proceed to a full trial on
the merits.
Duress - Defendants placed Weckerly under duress when they made forced payments and
threats to Weckerly to prevent her from timely filing her lawsuit and such duress tolled the
statute of limitations
6. Duress occurs when a person is coerced through mental, physical or other means
which cause that person to act against his or her own free will or to submit to a situation against
his or her own volition or interest. Pierce v. Estate of Haverlah, 428 S.W.2d 422, 425
(Tex.Civ.App--Tyler 1968, writ ref'd n.r.e.). Duress occurs when one person puts another person
in fear with the object of obtaining some valuable advantage from the person under duress. Gray
v. Freeman, 84 S.W. 1105, 1107-08 (Tex.Civ.App. 1905). To constitute duress, the threat must
overcome the willpower of a person and cause that person to do what he or she otherwise would
not. Doe v. Catholic Diocese of El Paso, 362 S.W.3d 707, 719 (Tex. App.El Paso 2011, no
pet.) When an action is based on duress, the statute of limitations is tolled until the duress ceases
to exist. See Pierce v. Haverlah's Estate, 428 S.W.2d 422 (Tex. Civ. App.Tyler 1968, writ
PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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ref'd n.r.e.); McNeill v. Lovelace, 529 S.W.2d 633, 63637 (Tex.Civ.App.-Fort Worth 1975, no
writ).
7. Having just been the victim of a sexual assault, Weckerly was coerced through
forced payments and threats by Defendants to go against her own free will and delay filing of
this suit. By threatening Weckerly, Defendants put Weckerly in fear with the object of obtaining
silence from Weckerly. These forced payments and threats overcame the willpower of Weckerly
and caused her to acquiesce to Defendants demands. As such, the statute of limitations was tolled
through the duration of payments and threats that Defendants made to Weckerly.
8. In Porter, the court found that Plaintiff had not been under duress because the
Plaintiff did not present evidence of threats or intimidation. Porter v. Charter Med. Corp., 957 F.
Supp. 1427, 1439 (N.D. Tex. 1997). Similarly, the court in Doe found that plaintiff did not
present enough evidence of duress by more than a scintilla of evidence that the statements made
by defendant deprived plaintiff of his free will and judgment to prevent plaintiff from bringing
his claim of sexual assault. Doe v. Catholic Diocese of El Paso, 362 S.W.3d 707, 720 (Tex.
App.El Paso 2011, no pet.). In Doe, the plaintiff asserted religious duress by the defendant
members of the Catholic Church when defendants told plaintiff that everything defendants
touched was sacred and that plaintiff should keep quiet or else he would get in trouble. Doe v.
Catholic Diocese of El Paso, 362 S.W.3d 707, 720 (Tex. App.El Paso 2011, no pet.).
9. Unlike Porter and Doe, Weckerly offers evidence of threats, sexual assault, being
made to sign documents against her will, being alone without legal counsel, being intimidated by
Defendants attorneys, not being given copies of what she signed, having her photographic
PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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evidence destroyed in front of her, and payments made by Defendants to place Weckerly under
duress.
Tolling
10. Further, Defendants urge this Honorable Court to dismiss all of Plaintiffs claims
asserting that TEX. CIV. PRAC. & REM. CODE 16.063 (the tolling statute) does not apply
to Texas residents. The Texas Supreme Court in Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008)
and Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009) previously held that the tolling statute does
not apply to non-residents reasoning that tolling as to a nonresident defendants is negated by the
general long-arm statute.
11. While Defendants erroneously direct this Court to Liptak v. Brunson for authority,
the Medina v. Tate opinion was issued after Liptak and is directly on point. Medina v. Tate, 01-
12-00496-CV, 2013 WL 3421973 (Tex. App. Houston [1
st
Dist.] July 9, 2013, no pet.) Medina
tracks the sound and unimpeachable reasoning of the Texas Supreme Court in Kerlin and Ashley.
A. The General Long Arm Statute establishes presence within the state for
purposes of negating the tolling statute

12. Specifically, in Kerlin and Ashley, the Texas Supreme Court declined to engage in
judicial activism. First, in Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008), the Texas Supreme
Court held that a non-resident was doing business in Texas under the general long-arm statute
because he was engaged in the commission of a continuous tort, was subject to service under the
general long-arm statute, and, therefore, not absent from the state. Id. at 928. (emphasis added)
13. Second, in Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009), the Texas Supreme
Court ruled, as it did in Kerlin, that a non-resident defendant is present in Texas, for purposes
of the tolling statute, if he or she is amenable to service under the general long-arm statute, as
long as the defendant has contacts with the state sufficient to afford personal jurisdiction. Id. at
PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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179. (emphasis added). Both Kerlin and Ashley involved non-resident defendants who were
amenable to service via the long arm statute.
14. Presence in the state of Texas for purposes of negating the tolling statute is not
established by the availability of an alternate method of service. Rather, the holding in Ashley
clearly states that the general long-arm statute will establish this presence, as its broad doing-
business language allows the statute to reach as far as the federal constitutional requirements of
due process will allow. Ashley, 293 S.W.3d at 179. Accordingly, presence can only mean either
physical presence within Texas, or as defined by the general long arm statute.
15. In overruling Vaughn v. Deitz,
1
the Ashley court stated: In Kerlin, we recognized
that Deitz did not address the effects of the general long-arm statute, only the impact of
amenability of service through the Chairman of the State Highway Commission. Ashley, 293
S.W.3d at 178. Thus, although amenability of service is a requirement, presence is not
established by the availability of an alternate means of service. For purposes of negating the
tolling statute, presence within the state is indubitably established by the general long-arm
statute. That statute only applies to non-residents, not Defendants, who are undisputedly Texas
residents.
16. Tolling still applies to residents during temporary absences from Texas.
2

Moreover, residents are not amenable to service through a designated agent under the general
long-arm statute. Accordingly, Plaintiffs claims should proceed to a trial setting on their full
merits.

1
The Texas Supreme Court specifically held in Deitz that a non-resident Defendant was absent from the state for
purposes of the tolling statute despite being amendable to service through the Chairman of the Highway
Commission under article 2039a (now codified as TEX. CIV. PRAC. & REM. CODE 17.062). Vaughn v. Deitz,
430 S.W.2d 487, 488 (Tex. 1968)

2
See Guardia v. Kontos, 961 S.W.2d 580, 584 (Tex. App.-San Antonio1997, no pet.): One can be a resident of the
state of Texas and be temporarily absent. In fact, Section 16.063 of the Code expressly recognizes that fact.
PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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B. Legislative Intent is to Permit Tolling
17. For unambiguous statutes, legislative intent is determined by the plain and
ordinary meaning of the words and terms used. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348,
352 Tex. 1990); see also TEX GOVT CODE ANN. 312.002 (a) (Vernon 1988).
TEX. CIV. PRAC. & REM. CODE 16.063, Temporary Absence from State
(The absence from this state of a person against whom a cause of action may be
maintained suspends the running of the applicable statute of limitations for the period of
the persons absence.)

18. It is no surprise that the Texas Supreme Court has eliminated the tolling statutes
application to non-resident defendants. Section 16.063 has consistently been interpreted to apply
only to Texas residents. E.g., Guardia v. Kontos, 961 S.W.2d 580, 584 (Tex. App.San Antonio
1997, no writ) ([T]he section 16.063 tolling provisions are not applicable to nonresidents.).
However, the Texas Supreme Court has not applied this same rule or interpretation to Texas
residents. Further, there is no basis for finding that the Legislature intended merely to toll the
period during which service of process may be obtained.
3

19. Defendants offer no binding authority that would indicate the general long-arm
statute could ever be applied to a Texas resident. Further, Defendants rely on an argument that is
absent from the plain language of the statute and absent in any Texas Supreme Court decision. In
fact, Defendants would have this court precariously interpret the law and apply the statute in a


3
Ray v. ONeal, 922 S.W.2d 314, 316-17 (Tex. App. Fort Worth 1996, writ denied). Texas courts have
historically interpreted this section to mean that the time during a person's absence from the state, for whatever
purpose, will not be included in calculating the period of limitations...We also decline to restrict section 16.063 to
only those plaintiffs who filed suit within the limitations period, but were unable to achieve service because of the
defendant's absence from the state. To do so would be contrary to prevailing case law, as well as the express
language of the statute.

PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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way that lies in policy arguments found essentially in a minority of opinions - in Zavadil, Liptak,
and dissenting opinions in Medina v. Tate.
4

20. In Liptak v. Brunson, 402 S. W. 2d 909 (Tex. App. Dallas 2013, no pet.), the 5
th

District Court of Appeals adopted Zavadil as persuasive authority. But, neither Zavadil nor
Liptak adopted the clear and delineating language of the Texas Supreme Court relating
specifically to Texas residents. Further, other courts of appeals have reached the opposite
decision and the Supreme Court of Texas has stated the contrary to the opinions in Liptak and
Zavadil. The authority from the Supreme Court of Texas still deems absences from the state to
not count as part of the limitations time period. Phillips v. Holman, 26 Tex. 276, 276 (1862);
Fisher v. Phelps, Dodge & Co., 21 Tex. 551, 553 (1858).
21. The majority in Medina noted that applying the statute as Defendant in Zavadil
suggested requires the statute to be amended with unless the person is subject to personal
jurisdiction in Texas and amenable to service. Medina, 01-12-00496-CV, at *6. Further, the
Medina court stated, In our view, Zavadils holding that a resident defendants absence from the
state does not toll limitations under section 16.063 because the state always has jurisdiction over
its own residents and because residents need not be personally served cannot be squared with the
actual language of section 16.063, and such interpretation effectively renders it meaningless.
Id.
22. In summary, the Medina court stated absent a legislative change or a clear
expression of intent by the supreme court to overrule a centurys worth of case law interpreting
section 16.063 and its predecessor statute with regard to Texas residents, we decline to do so.
Id.

4
Zavadil v. Safeco Ins. Co. of Illinois, 309 S.W.3d 593 (Tex. App. Houston - [14th Dist.] 2010, pet. denied) (TEX.
CIV.PRAC. & REM. CODE 16.063 did not toll limitations as to Texas residents)
PLAINTIFFS BRIEF IN SUPPORT OF ANY OF PLAINTIFFS PLEAS IN AVOIDANCE OF THE STATUTE OF LIMITATIONS
OR TOLLING ARGUMENTS
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III.
CONCLUSION AND PRAYER
23. Given the foregoing, Plaintiff humbly asks this Honorable Court to decline
Defendants invitation to engage in judicial activism and their invitation to ignore the sound
statutory interpretation and clear meaning of a long standing Texas statute and its predecessor
statutes dating over 100 years. By declining Defendants invitation, this Court must, as a matter
of precedent and law, find that Plaintiffs claims are not barred by limitations. Plaintiff prays that
this Court allow Plaintiffs claims to proceed on to trial on their full merits.
Respectfully submitted,

By: __/s/ Thomas D Bowers_
Thomas D. Bowers III
State Bar No. 24006881
2331 West Northwest Highway
Dallas, Texas 75220
Tel: 214-237-9001
Fax: 214-237-9002
bowersfirm@gmail.com
ATTORNEY FOR PLAINTIFF


CERTIFICATE OF SERVICE
This is to certify that on the 24th day of September, 2014, a true and correct copy of the
above and foregoing Plaintiffs Brief in Support of Any of Plaintiffs Pleas in Avoidance of the
Statute of Limitations or Tolling Arguments was served on Defendants by and through their
counsel of record via email at the following address: C. Gregory Shamoun, 1755 Wittington
Place, Suite 200, LB 25, Dallas, Texas 75234, email: g@snlegal.com.

/s/ Thomas Bowers___________________
Thomas D. Bowers, III