Lee Marvin Sanders and Matthew Sodrok v. the Boeing Company, Kidde Technologies, Inc., and Jamco America, Inc.

Supreme Court of Texas
══════════
No. 23-0388
══════════

Lee Marvin Sanders and Matthew Sodrok,
Appellants,

v.

The Boeing Company, Kidde Technologies, Inc., and Jamco
America, Inc.,
Appellees

═══════════════════════════════════════
On Certified Questions from the
United States Court of Appeals for the Fifth Circuit
═══════════════════════════════════════

Argued September 12, 2023

JUSTICE BOYD delivered the opinion of the Court.

The Texas Civil Practice and Remedies Code requires claimants
to “bring suit” by particular deadlines but also provides exceptions that
extend or suspend those limitations periods. See, e.g., TEX. CIV. PRAC. &
REM. CODE § 16.003(a) (providing a two-year period to “bring suit” for
personal injury). One such exception, set forth in Section 16.064,
“suspends the running of the applicable statute of limitations for the
period” from “the date of filing an action in a trial court” until “the date
of a second filing of the same action in a different court,” but only if
(1) “because of lack of jurisdiction in the trial court where the action was
first filed, the action is dismissed or the judgment is set aside or
annulled in a direct proceeding,” and (2) “not later than the 60th day
after the date the dismissal or other disposition becomes final, the action
is commenced in a court of proper jurisdiction.” Id. § 16.064(a).
The United States Court of Appeals for the Fifth Circuit has
certified two questions to this Court regarding the construction of
Section 16.064(a). 1 First, does the section apply when, as here, the prior
court dismissed the action because of lack of jurisdiction but the court
would have had jurisdiction if the claimants had properly pleaded the
jurisdictional facts? And second, did these claimants file the subsequent
action within sixty days after the dismissal became final? Sanders v.
Boeing Co., 68 F.4th 977, 984 (5th Cir. 2023). We answer Yes to both
questions. Applying the statute’s plain language, we conclude Section
16.064(a) applies in this case because (1) even if the prior court could
have had jurisdiction, it nevertheless dismissed the action “because of
lack of jurisdiction,” and (2) the claimants filed this action within sixty
days after they exhausted their appeal from the dismissal and the
appellate court’s power to alter the judgment ended, which is when the
dismissal became “final.”

1 See TEX . CONST. art. V, § 3-c(a) (“The supreme court [has] jurisdiction

to answer questions of state law certified from a federal appellate court.”); TEX.
R. APP. P. 58.1 (“The Supreme Court of Texas may answer questions of law
certified to it by any federal appellate court if the certifying court is presented
with determinative questions of Texas law having no controlling Supreme
Court precedent.”).

2
I.
Background
Lee Marvin Sanders and Matthew Sodrok both work as flight
attendants for a major airline. They allege they were injured in January
2017 when a smoke detector on a flight they were working
malfunctioned and emitted an alarm so loud it burst their ear drums
and caused permanent hearing loss. They initially filed suit against The
Boeing Company in a federal district court in Houston but quickly
dismissed that action without serving process on any defendant. They
then refiled their claims, still before the applicable two-year limitations
period expired, in a federal district court in Dallas. The parties engaged
in discovery for over a year, and the flight attendants amended their
complaint to name Boeing, Kidde Technologies, and Jamco America as
defendants (collectively, Boeing).
A year and a half after the limitations period expired, the Dallas
district court entered an order concluding the flight attendants failed to
adequately plead a basis for diversity jurisdiction in federal court or for
venue in Dallas. 2 Boeing did not challenge the court’s jurisdiction or
move for the entry of such an order; instead, the Dallas district court
raised the issue sua sponte. The order required the flight attendants to

2 Regarding jurisdiction, the order explained that the flight attendants

failed to plead the location of their own citizenship because they pleaded only
that they “reside” in Texas and did not state where they are “domiciled” and
failed to plead the location of the defendants’ citizenship because they did not
allege their states of incorporation or principal places of business. Sanders v.
Boeing Co., No. 3:18-CV-03165-X, 2020 WL 13866580, at *1 (N.D. Tex. July 21,
2020).

3
file an amended complaint addressing those deficiencies within seven
days.
The flight attendants filed a third amended complaint seven days
later. But in response, the Dallas district court entered another order—
again acting sua sponte—concluding that the new complaint still failed
to adequately plead diversity of citizenship. The court therefore
dismissed the complaint without prejudice for lack of jurisdiction under
Federal Rule of Civil Procedure 12(h)(3) and for failure to comply with a
court order under Federal Rule of Civil Procedure 41(b). Sanders v.
Boeing Co., No. 3:18-CV-03165-X, 2020 WL 5100788, at *1 (N.D. Tex.
Aug. 6, 2020), aff’d, No. 20-10882, 2021 WL 3412509 (5th Cir. Aug. 4,
2021). The flight attendants promptly filed motions to reinstate the case
and for leave to file a fourth amended complaint, asserting they had
“mistakenly and inadvertently misunderstood” the court’s initial order.
While those motions were pending, the claimants also filed a premature
notice of appeal to the Fifth Circuit.
After holding a hearing, the Dallas district court denied both
motions, concluding that the flight attendants “did not comply with the
Court’s order on properly pleading jurisdiction despite specific
instructions to do so.” Sanders v. Boeing Co., No. 3:18-CV-03165-X, 2020
WL 13490845, at *2 (N.D. Tex. Sept. 30, 2020). The Fifth Circuit
affirmed the dismissal a year later on August 4, 2021, concluding the
district court “did not err in dismissing Plaintiffs’ claims under Rule
12(h)(3)” for lack of subject-matter jurisdiction because “Plaintiffs’
jurisdictional allegations remained insufficient.” Sanders v. Boeing Co.,

4
No. 20-10882, 2021 WL 3412509, at *3 (5th Cir. Aug. 4, 2021). 3 The Fifth
Circuit denied the claimants’ rehearing motion on September 13, 2021,
and issued its mandate on September 21.
On November 10, 2021—nearly three years after the two-year
limitations period expired and ninety-eight days after the Fifth Circuit
issued its opinion and judgment, but less than sixty days after the Fifth
Circuit denied the rehearing motion and issued its mandate—the flight
attendants refiled their claims in state court. Boeing then promptly
removed the case to the federal district court in Houston, asserting (as
the flight attendants had asserted in the Dallas district court) that the
federal court had jurisdiction based on diversity of citizenship. Boeing,
in fact, had never disputed diversity of citizenship and agrees with the
flight attendants that such diversity existed all along.
A month after removing the case to federal court, Boeing moved
to dismiss the action based on the two-year statute of limitations. The
Houston district court granted the motion and dismissed the suit,
holding Section 16.064 did not suspend the running of limitations
because the Dallas district court “was not deemed a ‘wrong court’
pursuant to the requirements of section 16.064.” Sanders v. Boeing Co.,
No. 4:21-CV-04042, 2022 WL 2349155, at *3 (S.D. Tex. June 1, 2022).
The flight attendants appealed, and the Fifth Circuit certified the two
questions to us. Sanders, 68 F.4th at 984.

3 The Fifth Circuit expressly did not reach the question of whether the

district court erred by dismissing for failure to comply with a court order under
Rule 41(b), affirming instead solely on the ground the court lacked jurisdiction.
2021 WL 3412509, at *4 n.5.

5
II.
“Because of Lack of Jurisdiction”
We begin by addressing the first certified question: “Does Texas
Civil Practice & Remedies Code § 16.064 apply to this lawsuit where
Plaintiffs could have invoked the prior district court’s subject matter
jurisdiction with proper pleading?” Id. This question focuses on Section
16.064(a)(1), which requires that, “because of lack of jurisdiction in the
trial court where the action was first filed, the action is dismissed or the
judgment is set aside or annulled in a direct proceeding.” TEX. CIV. PRAC.
& REM. CODE § 16.064(a)(1).
The parties do not dispute that complete diversity has always
existed between them or that the Dallas district court dismissed the
action because the flight attendants failed to adequately plead the
factual basis for federal diversity jurisdiction. Boeing argues, and the
Houston district court agreed, that Section 16.064 does not apply here
because the Dallas district court in fact had—or at least could have
had—diversity jurisdiction if the flight attendants had properly pleaded
it. According to Boeing, under “the most liberal interpretation” of
Section 16.064(a)(1), “the original court must have actually lacked
jurisdiction.” But Section 16.064(a)(1) does not require that “the trial
court where the action was first filed lacked jurisdiction.” Instead, it
requires that the prior action was dismissed “because of lack of
jurisdiction.” Id. Here, regardless of whether the Dallas district court
had or could have had jurisdiction, the reason it dismissed the action, at
least in part, was lack of jurisdiction.
We have briefly addressed Section 16.064 in a few prior decisions,
but only in passing. In doing so, we have used language that could be

6
read to support Boeing’s proposed narrow construction. We have said,
for example, that “Section 16.064 suspends the limitations period when
a party mistakenly, and in good faith, files suit in one court, when
jurisdiction was only proper in another.” City of DeSoto v. White, 288
S.W.3d 389, 401 (Tex. 2009) (emphasis added). And in In re United
Services Automobile Ass’n, 307 S.W.3d 299 (Tex. 2010), we stated that
Section 16.064 “is a legislative dictate that limitations be tolled for
‘any action’ filed in the wrong court,” that it “tolls limitations for those
cases filed in a trial court that lacks jurisdiction,” and that it “protects
plaintiffs who mistakenly file suit in a forum that lacks jurisdiction.” Id.
at 304, 311, 313 (all but first emphases added). 4 Most recently, in
Nathan v. Whittington, 408 S.W.3d 870 (Tex. 2013), we stated that
Section 16.064 applies only if the plaintiff “bring[s] suit (albeit in the
wrong court) before the limitations period expires.” Id. at 875 (emphasis
added). None of these cases, however, presented the issue we must
address here or required us to consider the distinction between a court
that “lacks jurisdiction” and a court that dismisses an action “because of
lack of jurisdiction.”
The language we used in our prior opinions tracked the
descriptions in several Fifth Circuit and Texas appellate court decisions
that narrowly construed Section 16.064 and its predecessor, article

4 See also United Servs. Auto. Ass’n, 307 S.W.3d at 304 (observing that

the Legislature initially enacted Section 16.064’s predecessor as “[a]n act to
extend the period of limitation of any action in the wrong court” (quoting Act of
Apr. 27, 1931, 42d Leg., R.S., ch. 81, 1931 Tex. Gen. Laws 124, 124, current
version at TEX. CIV. PRAC. & REM. CODE § 16.064) (emphasis added)).

7
5539a,5 stating that the statute applies only when the claimant
“mistakenly” filed the prior action in “the wrong court,” 6 meaning a court
that in fact “lacked” subject-matter jurisdiction and thus was a court of
“improper jurisdiction. ”7 But like our prior decisions, those cases did not
present—and those courts were not required to decide—the issue of

Act of Apr. 27, 1931, 42d Leg., R.S., ch. 81, 1931 Tex. Gen. Laws
5

124, 124.
6 See Agenbroad v. McEntire, 595 F. App’x 383, 387 (5th Cir. 2014) (“The

plain language of section 16.064 indicates that it is meant to apply only where
the plaintiff’s suit was filed in the ‘wrong court.’”); Clary Corp. v. Smith, 949
S.W.2d 452, 461 (Tex. App.—Fort Worth 1997, pet. denied) (holding Section
16.064 did not apply because the claimants did not file in the “wrong court” by
“mistake”); Bell v. Moores, No. 01-94-00826-CV, 1996 WL 74099, at *5 (Tex.
App.—Houston [1st Dist.] 1996, no writ) (not designated for publication)
(stating section 16.064 “deals with tolling of the statute of limitations when the
first suit is filed in the wrong court”); Turner v. Tex. Dep’t of Mental Health &
Mental Retardation, 920 S.W.2d 415, 419 (Tex. App.—Austin 1996, writ
denied) (“[Section 16.064] is designed to protect litigants who mistakenly file
their action in the wrong court.”); Chalmers v. Am. Nat’l Ins. Co., 103 S.W.2d
228, 229 (Tex. App.—El Paso 1937, no writ) (“In order for the . . . dismissal of
a suit to toll [article 5539a], the suit must have been first filed in a court that
lacked jurisdiction, or, as the caption of the act expressed it, ‘in the wrong
Court.’”).
7 See Hotvedt v. Schlumberger Ltd., 942 F.2d 294, 296 (5th Cir. 1991)
(“[Section 16.064] suspends the limitations period when a plaintiff, acting in
good faith, mistakenly files his lawsuit in a court lacking jurisdiction and
thereafter initiates a second action in a court of proper jurisdiction.”); Oram v.
Gen. Am. Oil Co. of Tex., 503 S.W.2d 607, 609 (Tex. App.—Eastland 1973, writ
ref’d n.r.e.) (stating article 5539a applies “only when the dismissal of the
former action was for lack of jurisdiction; if the court had jurisdiction the
statute is not tolled”) (citing Garrett v. Hartford Accident & Indem. Co., 107
S.W.2d 726, 728 (Tex. App.—Eastland 1937, no writ) (stating that article
5539a applies only if prior court is a court “which did not have jurisdiction” or
was a court of “improper jurisdiction”), and Binge v. Gulf Coast Orchards Co.,
93 S.W.2d 813, 814 (Tex. App.—San Antonio 1936, writ dism’d) (holding article
5539a did not apply because the prior court actually “had jurisdiction”)).

8
whether the statute applies when the prior court dismissed the action
because it lacked jurisdiction when it could have had jurisdiction if the
claimant had adequately pleaded the jurisdictional facts. 8
In contrast to these decisions, the Fifth Circuit and Texas
appellate courts have construed the provision broadly in other cases,
even when using similar “mistake” and “wrong court” language, holding
the section applies when the prior court lacked jurisdiction for any
reason9 and even when it actually had jurisdiction but made a

8 See Agenbroad, 595 F. App’x at 387–88 (holding Section 16.064 did not

apply because prior court dismissed for “lack of standing to sue”); Hotvedt, 942
F.2d at 297 (addressing case in which claimant voluntarily dismissed prior
action after the trial court stayed the action based on forum non conveniens
and holding that a stay “is not considered tantamount to a dismissal, much
less a dismissal on jurisdictional grounds”); Clary Corp., 949 S.W.2d at 461
(addressing case in which claimants made “tactical decisions” to allow
dismissal and then refile claims in same court); Bell, 1996 WL 74099, at *5
(holding statute did not apply because prior court dismissed for lack of
jurisdiction because plaintiff lacked standing, not because it was “the wrong
court”); Turner, 920 S.W.2d at 418 (presuming prior court dismissed “for lack
of jurisdiction” and focusing instead on whether second suit was “the same”
action as the first); Oram, 503 S.W.2d at 610 (addressing case in which prior
court dismissed in response to plea in abatement, not “for lack of jurisdiction”);
Garrett, 107 S.W.2d at 728 (addressing case in which prior court did not
dismiss prior action and instead claimant voluntarily nonsuited after
defendant removed case to federal court); Chalmers, 103 S.W.2d at 228
(addressing case in which prior court dismissed action for improper joinder of
parties and claims, not “for want of jurisdiction”); Binge, 93 S.W.2d at 814
(addressing case in which claimant voluntarily dismissed prior action).
9 See Long Island Tr. Co. v. Dicker, 659 F.2d 641, 647 (5th Cir. 1981)
(holding article 5539a applied when New York state court dismissed prior
action for lack of personal jurisdiction over the defendant, finding “no reason
to read into the statute limitations that are not contained in the words
therein”); Triple P.G. Sand Dev., LLC v. Del Pino, 649 S.W.3d 682, 691, 693,
698 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (holding prior court’s
dismissal of plea in intervention based on intervenors’ failure to adequately

9
discretionary decision not to exercise it. 10 Still others have applied the
section even more broadly, expressly rejecting the notion that the
statute applies only when the prior court was the “wrong court,” 11 and
holding it applies whenever the dismissal order states that the dismissal
is “for want of jurisdiction.” 12
We conclude that Section 16.064(a)(1)’s plain language does not
support a “wrong court” requirement, at least in the sense many courts
have described and applied it. The idea that Section 16.064 applies only
when the prior action was filed in “the wrong court” derives from the
section’s predecessor statute, article 5539a. Like Section 16.064, the text

plead “jurisdictional standing” was “tantamount to a dismissal for ‘lack of
jurisdiction’” and “satisfied the ‘dismissed for lack of jurisdiction’ requirement
set out in section 16.064(a)”).
10 See Vale v. Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no
writ) (holding the “federal court’s refusal to exercise jurisdiction over a pendent
state claim is tantamount to a dismissal for lack of jurisdiction”); Burford v.
Sun Oil Co., 186 S.W.2d 306, 310, 315 (Tex. App.—Austin 1944, writ ref’d
w.o.m.) (stating that article 5539a applies when prior case is “mistakenly but
in good faith brought in the wrong court” but holding federal court’s
discretionary decision not to exercise its jurisdiction because state courts
provided adequate remedy qualified as a dismissal “because the Federal court
was a wrong court, an ‘improper court,’ and therefore in effect a ‘court of
improper jurisdiction’”).
11 See Brown v. Fullenweider, 135 S.W.3d 340, 343 n.2 (Tex. App.—
Texarkana 2004, pet. denied) (refusing to follow prior decisions because the
court “fail[ed] to find in the text of Section 16.064(a) either a requirement that
the first filing be a ‘mistake’ or that it be filed in the ‘wrong court’”).
12 See Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645, 651–52 (5th

Cir. 1983) (rejecting argument that “article 5539a was designed to reach only
a ‘wrong court’ sort of lack of jurisdiction” because “‘wrong court’ was so clearly
used to mean ‘a court of improper jurisdiction’” and holding “a dismissal
specifically denoted a dismissal for want of jurisdiction is in fact a dismissal
for want of jurisdiction within the meaning of article 5539a”).

10
of that early act did not require that the prior action be filed in a “wrong
court” and instead required that the action “be dismissed in any way . . .
because of a want of jurisdiction of the Trial Court in which such action
shall have been filed.” Act of Apr. 27, 1931, 42d Leg., R.S., ch. 81, 1931
Tex. Gen. Laws 124, 124 (emphasis added). But the act’s title described
the statute as “[a]n act to extend the period of limitation because of filing
of any action in the wrong court.” Id. (emphasis added). When the
Legislature codified the act in 1985, it revised the title to delete the
“wrong court” language but, as Boeing notes, replaced it with the title,
“Effect of Lack of Jurisdiction.” Because a statute’s title can “inform the
inquiry into the Legislature’s intent,” TIC Energy & Chem., Inc. v.
Martin, 498 S.W.3d 68, 75 (Tex. 2016), Boeing urges us to construe
Section 16.064(a)(1) to require that the prior court could never have
properly acquired jurisdiction and was thus in fact the “wrong court.”
The El Paso Court of Appeals was the first appellate court to
incorporate the “wrong court” language from article 5539a’s title into its
text, stating in dicta that tolling is available only if the action was “first
filed in a court that lacked jurisdiction, or, as the caption of the act
expressed it, ‘in the wrong Court.’” Chalmers, 103 S.W.2d at 229. As
noted, numerous other courts—including this Court—followed suit,
although they did not always agree on what it meant for a court to be
“wrong.”
In Agenbroad and Bell, for example, the Fifth Circuit and
Houston’s First District Court of Appeals held that the statute did not
apply—even though the prior courts dismissed those actions because of
lack of jurisdiction—because the courts based their decisions on the

11
claimants’ lack of jurisdictional standing, which in those courts’ view
made the claimants the wrong claimants but did not make the court the
“wrong court.” Agenbroad, 595 F. App’x at 387–88; Bell, 1996 WL 74099,
at *5.13 Boeing relies particularly on Agenbroad, which noted that the
claimants could have established jurisdictional standing had they
pleaded their claims differently and suggested that Section 16.064 does
not apply when “the plaintiff could have amended his pleadings to come
within the court’s jurisdiction.” Agenbroad, 595 F. App’x at 388 (citing
Clary Corp., 949 S.W.2d at 461).
But more recently, in Triple P.G., the First District Court of
Appeals (without citing its unpublished opinion in Bell) held that a prior
court’s dismissal for failure to adequately plead jurisdictional standing
was “tantamount to a dismissal for ‘lack of jurisdiction’” and “satisfied
the ‘dismissed for lack of jurisdiction’ requirement set out in section
16.064(a).” 649 S.W.3d at 691, 693, 698. And before Agenbroad, the Fifth
Circuit held in Long Island that article 5539a applied when a New York
state court dismissed the prior action not for lack of subject-matter
jurisdiction but for lack of personal jurisdiction over the defendant,
finding “no reason to read into the statute limitations that are not
contained in the words therein.” 659 F.2d at 647.
We agree, of course, that a statute’s title can inform its meaning,
but it “cannot override the plain meaning of the underlying text.” Brown

13 Similarly, in Turner, the Austin Court of Appeals concluded that the

statute did not apply because, “[r]ather than mistakenly filing his action in
the wrong court, Turner simply filed the wrong cause of action,” even though
the court accepted that the prior court dismissed the action for lack of
jurisdiction. Turner, 920 S.W.2d at 419.

12
v. City of Houston, 660 S.W.3d 749, 754 (Tex. 2023). We must consider
the reference to “lack of jurisdiction” in Section 16.064’s title (and the
reference to “wrong court” in article 5539a’s title, to the extent we should
consider it at all) in light of the actual language in the statutory text. In
that light, we can agree with the courts that have concluded that the
terms are essentially synonymous, such that a “wrong court” is a court
that lacks jurisdiction. See Griffen, 706 F.2d at 651 (“[T]he legislature
appears to have thought the wrong court was one that wanted
jurisdiction.”); Fullenweider, 135 S.W.3d at 345 (concluding “the terms
are synonymous as applied to the tolling provision”). But Section
16.064(a)(1) does not require that the prior court was the “wrong court”
or that it “lacked jurisdiction.” It requires that the prior action was
dismissed “because of lack of jurisdiction.” TEX. CIV. PRAC. & REM. CODE
§ 16.064(a)(1). If the prior action was dismissed “because of lack of
jurisdiction,” the statute’s plain-language requirement is satisfied even
if the court actually had jurisdiction or could have had it if the
jurisdictional facts were properly pleaded. 14

14 The parties each argue in the alternative that it ultimately doesn’t

matter whether the statute imposes a “wrong court” requirement. Boeing
argues, for example, that even if the statute does not require that the prior
court could never properly exercise jurisdiction, the Dallas district court did
not dismiss the prior action “solely upon a lack of jurisdiction” under federal
Rule 12(h)(3) but also because the flight attendants failed to comply with the
court’s initial order under Rule 41(b). But Section 16.064 does not require that
the prior court dismissed the action “solely” because of lack of jurisdiction. And,
in any event, the order the flight attendants failed to comply with was an order
that required them to adequately plead the basis for diversity jurisdiction.
Indisputably, the court dismissed the prior action because it believed it lacked
jurisdiction, and the statute does not distinguish between the reasons for the
lack of jurisdiction. Moreover, the Fifth Circuit expressly did not address the

13
Boeing contends, however, that Section 16.064 requires that the
prior court could not properly exercise jurisdiction because subsection
(a)(2) expressly requires that the “same action” be refiled in a “different
court” that is a “court of proper jurisdiction.” Id. § 16.064(a)(2) (emphasis
added). According to Boeing, the section “juxtaposes” the prior court and
the subsequent court “in parallel fashion,” such that if the “different”
court in which the action is later filed must be one “of proper
jurisdiction,” then the prior court must necessarily have been one of
“improper jurisdiction.” The prior court, Boeing contends, had to
actually lack jurisdiction because it cannot be both a court where there
is a “lack of jurisdiction” under subsection (a)(1) and “a court of proper
jurisdiction” under subsection (a)(2). And because the Dallas district
court was actually “a court of proper jurisdiction” for this case, Boeing
asserts, it cannot also be a court where there was “a lack of jurisdiction.”
But this argument also overlooks the statute’s plain language.
Section 16.064(a)(2) requires that the action be refiled in “a court of
proper jurisdiction,” not “the court of proper jurisdiction” as if there

failure-to-comply ground and affirmed the dismissal solely on the ground that,
in light of the inadequate pleadings, the Dallas district court lacked
jurisdiction. 2021 WL 3412509, at *4 n.5.
The flight attendants, meanwhile, argue that even if Section 16.064
requires that the prior court was in fact the “wrong court” and could never
properly exercise jurisdiction, the Fifth Circuit’s decision affirming the
dismissal establishes as a matter of law that the Dallas district court in fact
lacked jurisdiction. See id. at *4 (“Plaintiffs have not convinced us that the
district court erred in dismissing this case for lack of subject-matter
jurisdiction.”). Because Section 16.064(1) requires only that the action was
dismissed “because of lack of jurisdiction” and does not require that the prior
court actually lacked jurisdiction, we need not address this alternative
argument.

14
could be only one court in which jurisdiction could be proper. Id.
§ 16.064(a)(2) (emphasis added). And more importantly, as noted,
subsection (a)(1) does not require that the prior court be a “court of
improper jurisdiction” or even a court that “lacks jurisdiction”; it
requires that the action be dismissed from that court “because of lack of
jurisdiction.” Id. § 16.064(a)(1) (emphasis added). The fact that
subsection (a)(1) refers to the reason for the dismissal while subsection
(a)(2) refers to the nature of the court negates Boeing’s proposed
“parallel” reading.
Finally, Boeing contends that Section 16.064 does not apply here
because the flight attendants’ action in the Dallas district court was not
their “first” action and their refiling in the state court was not their
“second.” See id. § 16.064(a) (referring to the “second filing of the same
action,” the “court where the action was first filed,” and “the first” filing).
Because the flight attendants “first” filed their claims in the federal
court in Houston, promptly dismissed that action, refiled in the Dallas
district court, and then filed again in state court, Boeing contends that
the statute applies only if the Houston action was dismissed “because of
lack of jurisdiction.” After all, Boeing explains, “first” means “preceding
all others,” so only the Houston action could be “first.” We again are not
convinced.
We have identified only one case in which a court addressed
whether or how Section 16.064 or article 5539a applies when the same
action is filed and refiled three or more times. See Tech. Consultant
Servs., Inc. v. Lakewood Pipe of Tex., Inc., 861 F.2d 1357 (5th Cir. 1988).
As here, that case involved a “trilogy of suits.” A Florida state court

15
dismissed the first for lack of personal jurisdiction over the defendant, a
Florida federal court dismissed the second for the same reason, and the
third was filed in a federal court in Texas. Id. at 1360. Relying on Texas
court decisions that consistently applied the statute “broadly in light of
its remedial goals,” the court concluded that it permits the “good faith
refiling of a ‘subsequent’ suit, not just a ‘second’ suit.” Id. at 1361.15
We need not rely on a “broad” or “liberal” construction to agree
with this result, however, as we believe the statute’s plain language
supports that same result. Section 16.064(a) addresses only two
“different” actions and their impact on the limitations period. In its
introductory paragraph, it refers to “an action in a trial court,” not to
“the first action,” and it then refers to “a second filing of the same action,”
not to “the second filing of the same action.” TEX. CIV. PRAC. & REM. CODE
§ 16.064(a) (emphases added). In this usage, “second” refers to the action
“next” following “an action in a trial court.” See Second, WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY (2002) (“next to the first in place
or time”); Second, THE OXFORD ENGLISH DICTIONARY (2d ed. 1989)
(“coming next after the first according to any contextually understood
principle of enumeration”); see also Tech. Consultant, 861 F.2d at 1361.
But the section does not in any way address the impact that either of
those two actions have on a prior or later third action or of the third
action on the two. As between the only two actions the section addresses,

15 Courts in other jurisdictions have applied other tolling statutes
similarly, but we do not find them helpful because the language of those
statutes differs materially from the language of article 5539a and Section
16.064. See, e.g., Sharp Bros. Contracting Co. v. Westvaco Corp., 817 P.2d 547,
551–52 (Colo. App. 1991) (citing cases).

16
one is necessarily “first” and the other is “next” or “second.” Here, the
flight attendants contend that the section tolls limitations from “the
date of filing an action” in the Dallas district court and the date of “a
second filing of the same action” in state court. We conclude that, as
between the two, these actions qualify as the “first” and “second” actions
under Section 16.064. 16
Based on the statute’s plain language, we conclude that Section
16.064(a)(1) requires what it plainly says it requires: the prior action
must be dismissed “because of lack of jurisdiction.” The requirement is

16 Like the Fifth Circuit in Technical Consultant, we note that
subsection (b) of Section 16.064, which makes tolling inapplicable if “the first
filing was made with intentional disregard of proper jurisdiction,” provides a
means to “prevent parties from abusing the provision with an unending string
of unjustifiable wrong-court filings.” 861 F.2d at 1361.

We also note that no party in this case has alleged or argued that the
flight attendants filed their action in the Dallas district court “with intentional
disregard of proper jurisdiction,” and the Fifth Circuit’s certified questions do
not ask us to address subsection (b). Boeing relies in part on subsection (b) to
support its contention that subsection (a)(1) requires the first court to actually
“lack jurisdiction,” arguing that it “would make little sense” for subsection (b)
to foreclose tolling when the first filing is made “with intentional disregard of
proper jurisdiction” if the first court could in fact be a court of “proper
jurisdiction.” But we fail to see the conflict. A party could file an action “with
intentional disregard of proper jurisdiction” in a court that lacks jurisdiction
only because the party failed to give proper regard to its jurisdictional
allegations. Here, for example, the federal district court gave the flight
attendants an unusually detailed roadmap to properly plead diversity
jurisdiction, but the flight attendants failed to follow that map in its next
amended pleading. For whatever reason, Boeing has expressly disclaimed any
argument that the flight attendants intentionally disregarded proper
jurisdiction, so we must await another case to address subsection (b)’s scope.
But we do note that while subsection (a) may grant substantial additional time
to refile a case dismissed for lack of jurisdiction, subsection (b) penalizes
intentional jurisdictional errors. Beyond that brief response, however, we need
not and do not address subsection (b).

17
satisfied when a court dismisses an action because of lack of jurisdiction
regardless of whether the court erred and actually had jurisdiction or
could have had jurisdiction had the claims been pleaded differently.
III.
Dismissal Becomes Final
We now turn to the Fifth Circuit’s second certified question: “Did
Plaintiffs file this lawsuit within sixty days of when the prior judgment
became ‘final’ for purposes of Texas Civil Practice & Remedies Code
§ 16.064(a)(2)?” Sanders, 68 F.4th at 984. This question focuses on
Section 16.064(a)(2), which requires that, “not later than the 60th day
after the date the dismissal or other disposition becomes final, the action
is commenced in a court of proper jurisdiction.” TEX. CIV. PRAC. & REM.
CODE § 16.064(a)(2). Boeing contends that a dismissal “becomes final”
under this section when the court that dismisses the action loses plenary
power over the case, regardless of whether the losing party appeals. In
contrast, the flight attendants argue that when a party appeals a
dismissal order, the dismissal does not become final until the party has
exhausted their appellate remedies and the appellate court’s power to
alter the judgment ends. We agree with the flight attendants.
Because the statute expressly refers not to when the dismissal
occurs but to when “the dismissal or other disposition becomes final,” id.
§ 16.064(a)(2) (emphasis added), the parties agree that the sixty-day
period begins sometime after the initial dismissal order is signed or
entered. See Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, 498
S.W.3d 236, 242 (Tex. App.—Austin 2016, pet. denied) (“The statute’s
use of ‘becomes final’ suggests that a judgment is not always final for
purposes of [Section 16.064(a)(2)] the instant the judgment is signed or

18
rendered.”). But beyond that, there are many points at which it could be
said that the dismissal “becomes final.”
Indeed, as we have previously acknowledged, “the term ‘final,’ as
applied to judgments, has more than one meaning” and “applies
differently in different contexts.” Street v. The Honorable Second Ct. of
Appeals, 756 S.W.2d 299, 301 (Tex. 1988) (quoting McWilliams v.
McWilliams, 531 S.W.2d 392, 393–94 (Tex. App.—Houston [14th Dist.]
1975, no writ)); see also Long v. Castle Tex. Prod. Ltd. P’ship, 426 S.W.3d
73, 78 (Tex. 2014) (“We assess a judgment’s finality differently,
depending upon the context.”). The term “final” can mean that an order
or judgment is appealable, 17 but it can also mean that it is not
appealable.18 It can refer to the content and terms of an order or
judgment, such as whether the order on its face disposes of all claims
and parties, 19 or to the order’s future effect, such as when the court loses

17 Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (holding

a judgment entered based on a proceeding other than a conventional trial on
the merits is “final” if it “actually disposes of every pending claim and party”
or “it clearly and unequivocally states that it finally disposes of all claims and
all parties”); see also Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (“To
be final for purposes of appeal, a judgment must dispose of all issues and
parties in a case.” (citing Street, 178 S.W.3d at 301)); Mobil Oil Corp. v.
Matagorda Cnty. Drainage Dist. No. 3, 597 S.W.2d 910, 911 (Tex. 1980) (“It is
the finality which makes a judgment a subject for review.”).
18 Sultan, 178 S.W.3d at 752 (holding that statute declaring that the
“judgment of the county court or the county court at law is final” prohibits
appeals to the court of appeals); Seale v. McCallum, 287 S.W. 45, 47 (Tex. 1926)
(holding statute declaring that district court judgment in election contest is
“final” precluded appellate review); see also Hous. Mun. Emps. Pension Sys. v.
Ferrell, 248 S.W.3d 151, 158 (Tex. 2007) (“The words ‘final and binding,’ when
used to describe an administrative decision, preclude judicial review.”).
19 Lehmann, 39 S.W.3d at 205.

19
plenary power to alter the order or judgment, 20 or to when the order or
judgment takes on a preclusive effect, 21 vests rights as between the
parties,22 begins accruing post-judgment interest, 23 establishes
frivolousness for purposes of barring future claims, 24 triggers automatic
suspension of a license, 25 or gives rise to a subsequent claim based on
the order or judgment. 26

20 Street, 756 S.W.2d at 301.

21 Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986) (holding
judgment is “final for the purposes of issue and claim preclusion ‘despite the
taking of an appeal unless what is called an appeal actually consists of a trial
de novo’” (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 13 (AM. L. INST.
1982))).
22 Street, 756 S.W.2d at 301.

23 Long, 426 S.W.3d at 79–80 (holding if appellate court reverses and

remands, subsequent judgment is final for purposes of post-judgment interest
if trial court must reopen the record on remand, but original, erroneous
judgment is final for such purpose if trial court need not reopen the record or
if appellate court renders judgment trial court should have rendered).
24 In re Simmonds, 271 S.W.3d 874, 881–82 (Tex. App.—Waco 2008,
orig. proceeding) (holding dismissal order finding claim to be frivolous is not
final for purposes of precluding future claims until order is affirmed if appealed
because “a judgment is not final, in the sense that the litigation is concluded,
so long as an appeal is pending”).
25 Barham v. Tex. Dep’t of Pub. Safety, 398 S.W.2d 168, 169 (Tex. App.—

Eastland 1965, no writ) (“We hold that a judgment of conviction for the offense
of driving an automobile on a public highway while intoxicated which has been
appealed becomes final when the appeal is finally determined by the Court of
Criminal Appeals.”).
26 See, e.g., Evanston Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh,

Pa., No. 1:09-CV-909, 2012 WL 12977322, at *8 (E.D. Tex. Mar. 19, 2012)
(holding claim for equitable contribution accrues when litigation is finally
“completed” following all appeals, making claimant’s underlying liability
“absolutely certain”); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829

20
Not surprisingly then, courts have disagreed over when a
dismissal “becomes final” under Section 16.064(a)(2) and its
predecessor, article 5539a. In reviewing these decisions, we have found
it helpful to distinguish between cases in which no party appeals the
dismissal for lack of jurisdiction and those in which at least one party
does appeal.
When no party appeals the dismissal for lack of jurisdiction, the
analysis appears to be relatively easy. In one case where the trial court
dismissed the action for lack of jurisdiction and no party appealed, we
stated that whether the claimant timely filed the subsequent action
depended on whether that action “was ‘commenced’ within sixty days
after dismissal of the [prior] suit,” but we did not expound on when that
“dismissal” occurred or became “final.” Rigo Mfg. Co. v. Thomas, 458
S.W.2d 180, 182 (Tex. 1970).27 At least one court of appeals has held
that, if no party appeals a trial court’s dismissal for lack of jurisdiction,
the dismissal “becomes final” when the trial court loses plenary power
and can no longer reconsider or modify its judgment. See Reagan Nat’l,
498 S.W.3d at 241–42 (holding when “neither party appeals,” the

(Tex. 1990) (holding good-faith claim accrues when insurer wrongfully denies
claim rather than when claim is finally resolved in court); Street, 756 S.W.2d
at 301 (“[A] judgment is final for the purposes of bringing a Stowers action if it
disposes of all issues and parties in the case, the trial court’s power to alter the
judgment has ended, and execution on the judgment, if appealed, has not been
superseded.”).
27 We instead held in Rigo Manufacturing that the claimants did not
timely “commence” the subsequent action because, although they filed the
subsequent action only ten days after the prior court dismissed the first action,
they did not diligently procure issuance and service of citation on the defendant
until some eighteen months later. 458 S.W.2d at 182.

21
dismissal order “did not become final until at least 30 days from its order
denying the [defendant’s] motion for new trial”). We agree with this
understanding of finality when no party appeals a trial court’s dismissal
for lack of jurisdiction.
Another example of when no party appeals a dismissal for lack of
jurisdiction can occur when (1) the trial court does not dismiss because
of lack of jurisdiction, (2) a party appeals or seeks other relief from that
court’s order or judgment, (3) the appellate court does dismiss the action
because of lack of jurisdiction, and (4) no party seeks review of the
appellate court’s dismissal. As Boeing points out in its briefs, Section
16.064 addresses this scenario by requiring in subsection (a)(1) that,
“because of lack of jurisdiction in the trial court . . . , the action is
dismissed or the judgment is set aside or annulled in a direct
proceeding,” and by requiring in subsection (a)(2) that the action be
commenced in a court of proper jurisdiction within sixty days “after the
date the dismissal or other disposition becomes final.” TEX. CIV. PRAC. &
REM. CODE § 16.064(a) (emphases added). Because in this example, as
in the first, no party appeals the dismissal for lack of jurisdiction, the
finality analysis is the same as under the first example: the dismissal
“becomes final” when the appellate court (the court that first orders the
dismissal) loses plenary power and can no longer reconsider or modify
its judgment.
Vale illustrates this example. The Austin Court of Appeals held
there that “the earliest date from which the sixty-day period could begin
to run was” the date the appellate court issued its opinion dismissing
the claims for want of jurisdiction. 809 S.W.2d at 327 (emphasis added).

22
Similarly, and more specifically, the Waco Court of Appeals held in such
circumstances that the appellate court’s dismissal “becomes final” when
that court “disposes of all issues and parties in the case and the court’s
power to alter the judgment has ended.” Oscar Renda Contracting, Inc.
v. H&S Supply Co., 195 S.W.3d 772, 776 (Tex. App.—Waco 2006, pet.
denied); see Allright, Inc. v. Guy, 590 S.W.2d 734, 735–36 (Tex. App.—
Houston [14th Dist.] 1979, writ ref’d n.r.e.) (dismissing case for lack of
jurisdiction and advising that, “[s]ince the county court at law was
without jurisdiction in this case, appellee may, of course, refile in the
proper court within sixty days of the date that this decision becomes
final” (citing former art. 5539(a))). We again agree with this
understanding of when the dismissal for lack of jurisdiction “becomes
final.”
Yet another example of when no party appeals a dismissal for lack
of jurisdiction can occur when (1) neither the trial court nor the court of
appeals dismisses for lack of jurisdiction, (2) a party seeks review in this
Court, (3) this Court accepts review and dismisses the action because of
lack of jurisdiction, and (4) no party seeks review of this Court’s
dismissal in the United States Supreme Court. See Fullenweider, 135
S.W.3d at 343 (addressing such circumstances and noting that the
parties conceded that claimant timely filed subsequent suit within sixty
days after this Court’s judgment). We believe the same understanding
of finality should apply here as well, such that a dismissal because of
lack of jurisdiction that is ordered in the first instance by this Court
“becomes final” when this Court loses plenary power and can no longer
reconsider or modify our judgment.

23
The analysis potentially becomes more difficult when a party
appeals an order that dismisses an action because of lack of jurisdiction
and the order is affirmed on appeal.28 Here, for example, the Dallas
district court dismissed because of lack of jurisdiction, the flight
attendants appealed the dismissal, and the Fifth Circuit affirmed. The
Austin Court of Appeals acknowledged but expressly did not address
this scenario in Vale, 809 S.W.2d at 327 n.4 (“We do not address the
question of when a disposition becomes final for purposes of section
16.064 where, for example, a district-court dismissal for lack of
jurisdiction is later affirmed on appeal.”), but other courts have. At least
one Texas court of appeals has held that a dismissal that is appealed
becomes final on the date of the initial dismissal order. See Kaplan v.
Clear Lake City Water Auth., No. C14-91-01344-CV, 1992 WL 383881,
at *5 (Tex. App.—Houston [14th Dist.] Dec. 23, 1992, writ denied)
(“Although appellant appealed the district court’s judgment, this appeal
did not affect the applicability of § 16.064.”). And a federal district court
has held it becomes final when the court that ordered dismissal loses
plenary power and can no longer alter its judgment. Bullock v. Univ. of
Tex. at Arlington, No. 4:21-cv-0864-P, 2021 WL 5866644, at *6 (N.D.
Tex. Dec. 10, 2021). In other words, in these courts’ view, the dismissal
“becomes final” no later than when the court that ordered dismissal loses
plenary power, and an appeal from the dismissal does not affect the
dismissal’s finality.

28 Of course, if a party appeals and the dismissal is reversed, the action

remains live and no need for tolling arises.

24
Other courts, however, have held that a dismissal that is
appealed does not become final until the appellate courts ultimately
resolve the appeal and, more specifically, when that judgment itself
becomes final after all appeals. In Republic National Bank v.
Rogers, 575 S.W.2d 643, 644–45 (Tex. App.—Waco 1978, writ ref’d
n.r.e.), for example, the Waco Court held that a subsequent suit was
timely because it was filed within sixty days after the Fifth Circuit
issued its decision affirming a federal district court’s dismissal order.
And in Allright, after the Fourteenth Court dismissed for lack of
jurisdiction and advised that the claimant could “refile in the proper
court within sixty days of the date that this decision becomes final,” 590
S.W.2d at 735–36, it later noted that the claimant then sought this
Court’s review and concluded that the dismissal did not actually become
final until we refused to review that decision, Allright, Inc. v. Guy, 696
S.W.2d 603, 605 (Tex. App.—Houston [14th Dist.] 1985, no writ).
We believe the Rogers and Allright courts properly understood the
meaning of “final” as used within the context of Section 16.064(a)(2)’s
reference to a dismissal that “becomes final.” To be sure, for purposes of
appeal, an order that dismisses an action because of lack of jurisdiction
(whether entered by a trial court or an appellate court in the first
instance) must be “final” even to be appealable or reviewable, but “final”
in that sense refers to the order’s terms, asking whether on its face the
order disposes of all claims and parties. Section 16.064 is concerned not
with the order’s terms but with the dismissal’s effect. Indeed, Section
16.064 requires that the subsequent action be filed within sixty days

25
after the “dismissal” becomes final, not after the “dismissal order”
becomes final.
As we agreed a hundred years ago,
the judgment of a district court, though final in terms, is
not final in effect, so long as appellate proceedings are
pending seeking a revision of the same. Nor is a judgment
of the Court of Civil Appeals final in effect so long as a valid
application for writ of error is pending, whether such
application be denied or dismissed for want of jurisdiction.

Cont’l Gin Co. v. Thorndale Mercantile Co., 254 S.W. 939, 941 (Tex.
[Comm’n Op.] 1923) (emphases added) (citations omitted). 29
We relied in Continental Gin Co. on our earlier decision in
Dignowity v. Fly, 210 S.W. 505, 506 (Tex. 1919), in which we considered
when a court of appeals’ judgment that reversed a trial court’s judgment
and remanded the case to that court became “final” for purposes of a
statute that required the mandate to issue within twelve months after
the rendition of a “final” judgment. We held in Dignowity that if a party
sought review of the court of appeals’ judgment in this Court, the
judgment did not become “final” until we denied review, explaining that

29 See also Simmonds, 271 S.W.3d at 882 (“[A] judgment is not final, in

the sense that the litigation is concluded, so long as an appeal is pending.”);
Apparel Contractors, Inc. v. Vantage Props., Inc., 620 S.W.2d 666, 668 (Tex.
App.—Dallas 1981, writ ref’d n.r.e.) (“Regardless of whether a judgment has
been superseded, it is not final so long as an appeal is pending, and, although
it may be enforced by execution, payment of a fund to one party pending appeal
does not discharge liability to a different party that may be established after
reversal.” (citing Gonzalez v. Tex. Emp. Ins. Ass’n, 509 S.W.2d 423, 426 (Tex.
App.—Dallas 1974, writ ref’d n.r.e.)); Gonzalez, 509 S.W.2d at 426 (“A
judgment is not final so long as an appeal is pending, whether or not it has
been superseded. Consequently, no right can be asserted under a judgment
that has been reversed.”).

26
“it is the settled law that an appeal, with or without supersedeas,
operates to continue a pending suit, so as to deprive the judgment
appealed from of that finality ‘necessary to entitle it to admission in
evidence in support of the right or defense declared by it.’” Id. (quoting
Tex. Trunk Ry. Co. v. Jackson Bros., 22 S.W. 1030, 1032 (Tex. 1893)).
Otherwise, we explained, the trial court could ignore the court of
appeals’ decision and dismiss the case simply because the case remained
pending in this Court a year after the court of appeals’ judgment. Id.
As the Wisconsin Supreme Court later explained, relying in part
on our decision in Dignowity, this concept of “finality”—which focuses
not on whether an order’s terms make it final as opposed to interlocutory
but on the order’s effect on future actions—“can be attributed to the term
‘final judgment’ more easily in cases where a period of time within which
to act is limited to run from a final judgment.” Nw. Wis. Elec. Co. v. Pub.
Serv. Comm’n, 22 N.W.2d 472, 474 (Wis. 1946) (citing Dignowity, 210
S.W. at 505) (holding reference to “final judgment” referred to “a
judgment not open to attack by appeal or as to which an appeal had been
pursued and the judgment of the circuit court affirmed”). That, of course,
is exactly the sense in which Section 16.064(a)(2) uses the term “final,”
by requiring the subsequent action to be commenced within sixty days
after the “dismissal . . . becomes final.” TEX. CIV. PRAC. & REM. CODE
§ 16.064(a)(2).
This construction is consistent with the common understanding
of the term “final” as used within the context of Section 16.064 in light
of the realities that section addresses. When a trial court dismisses an
action because of lack of jurisdiction and the claimant appeals and

27
argues that the court in fact had jurisdiction, the parties’ dispute over
the jurisdictional issue remains live—and the dismissal is not truly
“final”—until the appellate court loses plenary power to resolve that
dispute. And if the appellate court affirms the dismissal, or if the
appellate court was the first to dismiss because of lack of jurisdiction,
the dispute still exists until this Court loses power to act on any timely
filed petition for review. See Freeport-McMoRan Oil & Gas LLC v. 1776
Energy Partners, LLC, 672 S.W.3d 391, 398–99 (Tex. 2023) (explaining
that our decisions become “final” when we issue a mandate because
“[u]ntil then, the dispute still existed because [a party] could file a
motion for rehearing and convince us to change our opinion and
judgment”).
Opposing this construction, Boeing argues that the distinction
Section 16.064 draws between a trial court’s “dismissal” for lack of
jurisdiction and an appellate court’s “other disposition” for lack of
jurisdiction (referring to when the trial court’s “judgment is set aside or
annulled in a direct proceeding”) necessarily “establishes two distinct
dispositions that start the 60-day clock—one in the trial court and one
in the court of appeals.” Based on this premise, Boeing concludes that if
(as here) a trial court “dismissal” occurs, then an appellate court’s “other
disposition” becomes irrelevant to the issue of when the “dismissal”
becomes final, such that all that matters is when the order of the court
that dismissed the action (whether a trial court’s dismissal or an
appellate court’s other disposition) becomes final. We agree with
Boeing’s premise, but not with its conclusion. The statute indeed
distinguishes between a trial court’s “dismissal” and an appellate court’s

28
“other disposition,” and in each case the dismissal must be “because of
lack of jurisdiction in the trial court.” But that still leaves the question
of when “the dismissal or other disposition becomes final,” and the
distinction Boeing relies on sheds no light on that question.
Boeing also contends that its proposed construction is necessary
to “promote the certainty and finality that limitations is meant to
ensure” and, conversely, delaying finality of a dismissal order until all
appeals are exhausted would “frustrate the purposes of statutes of
limitations.” See Childs v. Haussecker, 974 S.W.2d 31, 38–39 (Tex. 1998)
(explaining that statutes of limitations are intended to “help ensure that
the search for truth is not impaired by stale evidence or the loss of
evidence, and that defendants are guaranteed a point of repose for past
deeds after a reasonable period”). But Section 16.064 is not a statute of
limitations, it is an exception to a statute of limitations. Its stated
purpose is to “suspend” the applicable limitations period, despite the
risk of stale evidence and the need for repose. 30 TEX. CIV. PRAC. & REM.
CODE § 16.064(a).
We do not wholly discount Boeing’s concern about the length of
time appellate proceedings could extend a limitations period. But the
inevitable alternative under Boeing’s proposed construction is to require
claimants to quickly file a second action and then either forfeit their
right to appeal the dismissal for lack of jurisdiction or litigate the appeal

30 We note that the risk of the suspension resulting in stale or lost
evidence is quite slight in this case, as the parties had the opportunity to
engage in discovery for over a year before the Dallas district court dismissed
the action.

29
and the second action simultaneously. 31 And if the claimant prevails on
appeal and reverses the dismissal, the second action would have been
unnecessary all along. We addressed a similar concern in Street, in
which we held that, for purposes of giving rise to a Stowers action
against an insurer that fails to reasonably settle a claim against its
insured within its policy limits, a trial court judgment is final “if it
disposes of all issues and parties in the case, the trial court’s power to
alter the judgment has ended, and execution on the judgment, if
appealed, has not been superseded.” Street, 756 S.W.2d at 301. But we
clarified that despite that rule of finality for purposes of the Stowers
action, “the statute of limitations will not begin to run until all appeals
have been exhausted” because “[n]o valid public policy is served by
forcing an insured to bring an action which may ultimately prove
unnecessary.” Id. at 302.
Finally, Boeing argues that a trial court’s order “becomes final”
when that court loses plenary power because Section 16.064 “is meant
to give plaintiffs who file in the wrong court an opportunity to refile in
a proper court,” and when the trial court dismisses for lack of
jurisdiction, “the plaintiff is on notice” at that point in time “that he has
filed in the wrong court.” But in fact, no one knows if the trial court truly
lacked jurisdiction until any appeals from the dismissal order have been
exhausted. Until that point, the trial court’s dismissal order may be

31 Theoretically, the claimant could file a second action and then seek

to abate it until the appeal from the dismissal is finally resolved, but an
abatement of the litigation would itself undermine the purposes of limitations
and, at least in most respects, be no different than suspending the limitations
period.

30
“final” (and thus appealable), but the “dismissal” itself is not. Because
Section 16.064(a)(2) requires timely filing after the “dismissal” (as
opposed to the “dismissal order”) “becomes final,” and because the
statute uses the term “final” to refer to the future effect of the dismissal
by limiting the time to file a second action, we hold that a dismissal or
other disposition “becomes final” under Section 16.064(a)(2) when the
parties have exhausted their appellate remedies and the courts’ power
to alter the dismissal has ended.
IV.
Answers to Certified Questions
Based on our holdings explained above, we answer the Fifth
Circuit’s certified questions as follows: (1) because the Dallas district
court dismissed the first action because of lack of jurisdiction, Section
16.064 applies even though the flight attendants could have invoked
that court’s subject-matter jurisdiction with proper pleading, and (2) the
flight attendants filed this second action in the state court in Harris
County within sixty days after the Dallas district court’s dismissal of the
first action became “final” by filing within sixty days after they
exhausted all appeals from the dismissal and the appellate court lost
plenary power.

Jeffrey S. Boyd
Justice

OPINION DELIVERED: December 1, 2023

31