Doris Homer v. Eighty Seventh Apartments

Opinion filed October 10, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00283-CV
__________

DORIS HOMER, Appellant
V.
EIGHTY SEVENTH APARTMENTS, ET AL., Appellees

On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-22-03-0309-CV

MEMORANDUM OPINION
Appellant, Doris Homer, filed a negligence lawsuit two years and one day
after she was allegedly injured on property that was owned or controlled by
Appellees. Her lawsuit would ordinarily be barred by the two-year statute of
limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2017).
However, Homer maintains that the limitations period for her claim was suspended
for a total of twenty-eight days pursuant to an emergency order that was issued by
the Texas Supreme Court on April 1, 2020. See Eighth Emergency Ord. Regarding
COVID-19 State of Disaster, 597 S.W.3d 844 (Tex. 2020). In this appeal, we are
asked to determine whether the trial court erred when it granted a motion to dismiss
Homer’s negligence cause of action on the grounds that it was barred by limitations.
We conclude that the supreme court’s Eighth Emergency Order did not operate to
“toll” limitations in the traditional sense, and we affirm the judgment of the trial
court.
Factual and Procedural Background
Homer claims that, on March 30, 2020, she was injured while she was present
on premises that were owned or controlled by Appellees. Two days later, the
Texas Supreme Court issued its Eighth Emergency Order in connection with the
COVID-19 pandemic. Id. at 844. In relevant part, the order provided that “[a]ny
deadline for the filing or service of any civil case is tolled from March 13, 2020,
until June 1, 2020, unless extended by the Chief Justice of the Supreme Court.” Id.
Thereafter, on April 27, 2020, the supreme court issued its Twelfth
Emergency Order. Unlike the Eighth Emergency Order, the Twelfth Emergency
Order did not indicate that future deadlines for filing or service would be “tolled.”
Instead, it declared that “[a]ny deadline for the filing or service of any civil case that
falls on a day between March 13, 2020, and June 1, 2020, is extended until July 15,
2020.” Twelfth Emergency Ord. Regarding COVID-19 State of Disaster, 629
S.W.3d 144, 145 (Tex. 2020) (emphasis added).
The supreme court later issued several additional emergency orders that
included similar extensions to deadlines for the filing or service in civil cases, but
such orders did not decree that those deadlines would be “tolled.” See Seventeenth
Emergency Ord. Regarding COVID-19 State of Disaster, 609 S.W.3d 119, 121 (Tex.
2020); Eighteenth Emergency Ord. Regarding COVID-19 State of Disaster, 609

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S.W.3d 122, 124 (Tex. 2020); Twenty-First Emergency Ord. Regarding COVID-19
State of Disaster, 609 S.W.3d 128, 129 (Tex. 2020).
On March 31, 2022 (two years and one day after her alleged accident), Homer
filed a lawsuit against Appellees alleging a cause of action for personal injury.
Appellees answered and filed a motion to dismiss, asserting that Homer’s
claims were barred by the two-year statute of limitations. See TEX. R. CIV. P. 91a;
CIV. PRAC. & REM. 16.003(a) (“a person must bring suit for . . . personal injury . . .
not later than two years after the day the cause of action accrues”). The trial court
granted the motion to dismiss, and this appeal followed.
Analysis
In her sole issue, Homer claims that the trial court erred in granting the motion
to dismiss.
Rule 91a.1 of the Texas Rules of Civil Procedure provides, in relevant part:
[A] party may move to dismiss a cause of action on the grounds that it
has no basis in law or fact. A cause of action has no basis in law if the
allegations, taken as true, together with inferences reasonably drawn
from them, do not entitle the claimant to the relief sought. A cause of
action has no basis in fact if no reasonable person could believe the
facts pleaded.
In ruling on a Rule 91a motion, a court “may not consider evidence . . . and must
decide the motion based solely on the pleading of the cause of action.” TEX. R.
CIV. P. 91a.6. A party may file a Rule 91a motion to dismiss based on affirmative
defenses that are “conclusively established by the facts in a plaintiff’s petition.”
Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656
(Tex. 2020) (citing TEX. R. CIV. P. 91a.1).
We review a Rule 91a motion to dismiss de novo. Id. at 654; Bedford Internet
Off. Space, LLC v. Tex. Ins. Grp., Inc., 537 S.W.3d 717, 719 (Tex. App.—Fort Worth

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2017, pet. dism’d); Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied).
The parties’ dispute centers on the question of whether the two-year statute of
limitations operates to bar Homer’s claims. See CIV. PRAC. & REM. § 16.003(a).
Homer argues that, although her original deadline for filing suit fell on March 30,
2022 (two years after the day the cause of action accrued),1 the Eighth Emergency
Order suspended the accrual of the statute of limitations for an additional twenty-
eight days. 2 Thus, Homer claims that her lawsuit filed on March 31, 2022 fell within
the limitations period.
Appellees maintain that the Eighth Emergency Order only affected cases in
which limitations would otherwise run if they were not filed between March 13
and June 1. This interpretation, they argue, is consistent with the supreme court’s
remaining emergency orders, each of which operated only to extend the relevant
deadlines for filing. Thus, Appellees maintain that the Eighth Emergency Order was
not applicable to Homer’s case.
The Ordinary Meaning of “Tolling”
As is the case with statutory construction, our objective in interpreting the
supreme court’s order is to effectuate its intent. Hogan v. Zoanni, 627 S.W.3d 163,
169 (Tex. 2021); Brazos Elec. Power Coop., Inc. v. Tex. Comm’n on Env’t Quality,
576 S.W.3d 374, 383-84 (Tex. 2019); In re Est. of Hallmark, 629 S.W.3d 433, 439
(Tex. App.—Eastland 2020, no pet.). Such intent is generally ascertained “from the

1
See Medina v. Lopez-Roman, 49 S.W.3d 393, 398 (Tex. App.—Austin 2000, pet. ref’d) (“[U]sing
the measure of a calendar year, we look to the date upon which the event occurred and then look at the
calendar to find the same date, two years later, to determine the expiration of the statute of limitations.”).

Homer appears to concede that, once the Twelfth Emergency Order was issued, the Eighth
2

Emergency Order was no longer in effect. Thus, she claims that the statute of limitations was tolled between
March 30 (the date of the incident) and April 27 (the date of the Twelfth Emergency Order).
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plain meaning of the words used.” Brazos, 576 S.W.3d at 384; see also TXI
Operations LP v. Tex. Comm’n on Env’t Quality, 665 S.W.3d 203, 208 (Tex. App.—
Austin 2023, pet. denied). In assessing the plain meaning of the order, we read it
as a whole, construing its words and phrases in context according to the rules of
grammar and common usage. See Brazos, 576 S.W.3d at 384. We are to interpret
emergency orders according to the plain meaning of the terms the order uses, unless
a different meaning is apparent from the context, or the ordinary meaning leads to
absurd results. Kim v. Ramos, 632 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.]
2021, no pet.); Prescod v. Tkach, No. 02-21-00162-CV, 2022 WL 246858, at *5
(Tex. App.—Fort Worth Jan. 27, 2022, no pet.) (mem. op.) (interpreting the supreme
court’s Thirty-Sixth Emergency Order).
When used in the context of a statute of limitations, the supreme court has
construed the term “tolling” to ordinarily refer to a suspension of the running of
limitations. In Kerlin v. Sauceda, for example, the supreme court was called on to
interpret Section 16.063 of the Civil Practice and Remedies Code, which provided
that “[t]he 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 person’s absence.” 263 S.W.3d 920, 926 (Tex. 2008) (emphasis added)
(quoting CIV. PRAC. & REM. § 16.063 (West 2015)). Although Section 16.063 does
not describe the suspension of the statute of limitations as “tolling” the statute, the
Kerlin court concluded that it effectively tolled the limitations period, and referred
to it as a “tolling statute.” Id. at 922, 926. Similar descriptions of Section 16.063
have followed in more recent years. See, e.g., Ferrer v. Almanza, 667 S.W.3d 735,
738 (Tex. 2023) (Section 16.063 is a “tolling statute”); Levinson Alcoser Assocs.,
L.P. v. El Pistolon II, Ltd., 670 S.W.3d 622, 628 (Tex. 2023) (equitable tolling
“delays accrual or tolls the running of a statute of limitations”).

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When a statute is “tolled” in this traditional sense, any time that passes during
the tolling period results in a corresponding delay of the deadline for filing suit under
the applicable statute of limitations. See, e.g., Ferrer, 667 S.W.3d at 738 (“If a
tolling provision applies, it delays or tolls the running of the applicable limitations
period.”); Levinson, 670 S.W.3d at 628; Winn v. Martin Homebuilders, Inc., 153
S.W.3d 553, 558 (Tex. App.—Amarillo 2004, pet. denied) (when cause of action is
concealed, statute of limitations “begins to run” when plaintiff gains knowledge of
facts that would cause a reasonable person to make a relevant inquiry). As such, the
supreme court’s use of the term “tolled” ordinarily suggests an intention to suspend
limitations during the tolling period.
Context of the Eighth Emergency Order
An assessment of the ordinary meaning of the term “tolled,” however, does
not conclude our inquiry. We must also consider the context of the order itself. See
Brazos, 576 S.W.3d at 384.
The Eighth Emergency Order was handed down shortly after Governor
Abbott issued a proclamation determining that “COVID-19 poses an imminent threat
of disaster.” See Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions,
610 S.W.3d 911, 914–15 (Tex. 2020) (quoting The Governor of the State of Texas,
Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095 (2020)). As a result of the
proclamation, the supreme court was authorized to exercise the emergency powers
found in Section 22.0035 of the Texas Government Code. That statute provides, in
relevant part, that “the supreme court may modify or suspend procedures for the
conduct of any court proceeding affected by a disaster during the pendency of a
disaster declared by the governor.” TEX. GOV’T. CODE ANN. § 22.0035(b) (West
2023). It further provides that any orders issued thereunder “may not extend for

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more than 90 days from the date the order was signed unless renewed by the chief
justice.” Id.
The Eighth Emergency Order was issued pursuant to the authority granted by
Section 22.0035(b). See Eighth Emergency Ord., 597 S.W.3d at 844. As such, its
overall purpose was to mitigate any harms that might accrue to litigants as a result
of the pandemic. To accomplish that end, it “tolled” the statute of limitations for
certain cases until June 1, 2020. Id.
However, it is not clear that the supreme court had the statutory authority to
“toll” every potential civil action en masse in the traditional sense that is described
above. Section 22.0035(b) provides that the supreme court may “modify or suspend
procedures for the conduct of any court proceeding affected by a disaster.” GOV’T
§ 22.0035(b) (emphasis added). At the time the Eighth Emergency Order was in
effect, Homer, like many other similarly situated persons, merely had a potential
cause of action. She was not yet involved in a court proceeding, and would not file
such a proceeding until 2022, long after the pandemic’s impediment on her ability
to file suit had subsided. We presume that the supreme court intended to act within
its constitutional and statutory authority, just as we do with legislative actions.
See, e.g., Brazos, 576 S.W.3d at 384; Proctor v. Andrews, 972 S.W.2d 729, 735
(Tex. 1998) (“Statutes are given a construction consistent with constitutional
requirements, when possible, because the legislature is presumed to have intended
compliance with [the constitution].”) (quoting Brady v. Fourteenth Ct. of Appeals,
795 S.W.2d 712, 715 (Tex.1990)). As such, the context of the Eighth Emergency
Order leads us to the conclusion that the supreme court was not using the word
“tolling” in the traditional sense.
While the supreme court, arguably, may not have been authorized to toll
limitations for claimants whose deadlines under the statute of limitations were not

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imminent (such as Homer), it did have the authority to “suspend or modify”
proceedings that either were on file at the time, or that were filed within ninety days
after the order became effective. See Eighth Emergency Ord., 597 S.W.3d at 844.
Thus, the supreme court’s use of the word “tolled” in the Eighth Emergency Order
is consistent with an extension of a statute of limitations that expired between
March 13, 2020 and June 1, 2020. Id.
Our interpretation of the Eighth Emergency Order is consistent with the
Twelfth Emergency Order, which expressly “clarified and amended”—and thus
superseded—the Eighth Emergency Order. See Twelfth Emergency Ord., 629
S.W.3d at 144. Pursuant to the Twelfth Emergency Order, “[a]ny deadline for the
filing or service of any civil case that falls on a day between March 13, 2020, and
June 1, 2020, is extended.” Id. at 145 (emphasis added). Based on this language,
the purpose of the clause at issue is to extend filing deadlines that arise between
March 13 and June 1, not to toll limitations on all potential cases that might later be
filed. See also Curry v. Valentin, No. 22-20450, 2023 WL 1267253, at *2 (5th Cir.
Jan. 31, 2023) (“Under its plain language, the Twelfth Emergency Order made clear
that the deadlines subject to extension under the Eighth Emergency Order were those
that fell between March 13, 2020, and June 1, 2020, and that those deadlines would
be extended to July 15, 2020.”).
Homer’s Interpretation
In her brief, Homer acknowledges that the Twelfth Emergency Order had the
effect of extending imminent deadlines, rather than tolling the statute of limitations
for all pending cases. However, she argues that, because the Eighth Emergency
Order was in effect for twenty-eight days, it still had the effect of tolling the statute
of limitations on “all cases” during that time. Eighth Emergency Order, 597 S.W.3d
at 844. Although she does not explicitly state as much, Homer appears to contend

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that the twenty-eight-day suspension of the limitations period was never reversed
after it took effect. Thus, according to Homer, while the supreme court’s Twelfth
Emergency Order effectively ended the tolling period, it did not operate retroactively
to nullify the twenty-eight-day tolling period that had already been effectuated.
Homer’s interpretation of the Eighth and Twelfth Emergency Orders is
problematic for two reasons.
First, as we have noted above, the supreme court’s statutory authority under
Section 22.0035(b) is limited to “court proceeding[s].” GOV’T § 22.0035(b). It did
not have authority over unfiled, potential claims and causes of action that were not
yet a part of such proceedings. Furthermore, Homer did not file suit to initiate a
court proceeding until March 31, 2022, which was well outside the ninety-day period
in which the supreme court was authorized to act, and after the Eighth Emergency
Order had expired. See GOV’T § 22.0035(b). Accordingly, because an order
“tolling” all cases would have exceeded the supreme court’s statutory authority, such
an order would have been void, and could not have effectively altered the limitations
period applicable to Homer’s cause of action. See, e.g., Mapco, Inc. v. Forrest, 795
S.W.2d 700, 703 (Tex. 1990) (“Judgments are void for lack of power in courts to
render them when they are rendered contrary to constitutional or valid statutory
prohibition or outside limiting constitutional or statutory authority.”) (quoting
Freeman v. Freeman, 327 S.W.2d 428, 433 (1959)).
Second, although it can be argued that a mere amendment of the Eighth
Emergency Order might not have a retroactive effect, the Twelfth Emergency Order
also indicated that the order “clarified” the meaning of the previous order. Thus, by
stating that the deadlines at issue were being “extended” rather than “tolled,” the
supreme court made it clear that—despite the tolling language in the Eighth
Emergency Order—the order was intended to create an extension of the filing

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deadline only in civil actions that had been or would be filed before June 1, 2020.
Unlike an order that tolls all cases, such an extension is a properly limited exercise
of the supreme court’s emergency powers. See GOV’T § 22.0035(b).
We also note that the Twelfth Emergency Order extended all relevant filing
deadlines until July 15, 2020, providing additional time for the affected parties to
file their cases. Twelfth Emergency Ord., 629 S.W.3d at 145. Such language is
consistent with an effort to accommodate any confusion that may have arisen out of
the tolling language in the Eighth Emergency Order, and it further reinforces our
conclusion that such language operates only as an extension.
In support of her claim that the Eighth Emergency Order tolled the statute of
limitations in the traditional sense, and for all potential cases, Homer relies on
Bender v. Crawford, 33 Tex. 745 (1870). In Bender, the Texas Supreme Court
considered a provision in the state constitution of 1869 which suspended the statute
of limitations between January 1861, when Texas seceded from the Union, and the
date on which the 1869 constitution was approved by the United States Congress.
TEX. CONST. art. XII, § XLIII (repealed Feb. 15, 1876) (Section 43). At issue in
Bender was whether the suspension of limitations was invalid because it was an ex
post facto law and/or a law impairing the obligation of contracts. 33 Tex. at 759.
The court concluded that, when they enacted the constitution, “the people of Texas
. . . had both the right and the power to disregard even vested rights” and that the
courts were bound to follow the constitutional directive. Id.
In Bender, there was no dispute that the intention of Section 43 was to toll the
statute of limitations in the traditional sense. See, e.g., id. at 750 (“the argument on
either side admits, that but for the clause in our state constitution . . . the collection
of the notes sued on would be barred by the laws of limitation”). Furthermore, while
Bender addressed the authority of a constitutional convention, acting on behalf of

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the citizens of Texas, to toll limitations, it did not consider the scope of the supreme
court’s power to toll limitations based on the contents of the statute at issue in this
case. Id. at 759. Accordingly, Bender is inapplicable.
We are likewise unpersuaded that the decision of the Supreme Judicial
Court of Massachusetts in Shaw’s Supermarkets, Inc. v. Melendez is applicable. 173
N.E.3d 356 (Mass. 2021). Shaw’s Supermarkets involved a dispute over the
interpretation of a similar order that was issued by the Supreme Judicial Court during
the COVID-19 pandemic. Id. at 359. In Shaw’s Supermarkets, the court’s
emergency powers were based, in part, on a Massachusetts statute that conferred
powers on the Supreme Judicial Court to issue “such . . . orders, directions and rules
as may be necessary or desirable for the furtherances of justice, the regular execution
of the laws, the improvement of the administration of such courts, and the securing
of their proper and efficient administration.” Id. (quoting G.L.c. 211, § 3). Based
on such authority, the Supreme Judicial Court rendered an order which provided as
follows:
All civil statutes of limitations were tolled . . . from March 17, 2020,
through June 30, 2020, and will not be tolled any further unless there is
a new surge in COVID-19 cases in the Commonwealth and the
[Supreme Judicial Court] determines that a new or extended period of
tolling is needed. . . . The new date for the expiration of a statute of
limitation is calculated as follows: determine how many days remained
as of March 17, 2020, until the statute of limitation would have expired,
and that same number of days will remain as of July 1, 2020 in civil
cases. . . . For example, if fourteen (14) days remained as of March 17
before the statute of limitation would have expired in a civil case, then
fourteen (14) days will continue to remain as of July 1, before the
statute of limitation expires (i.e., July 15).

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Id. Unlike Section 22.0035(b) of the Texas Government Code, 3 the Massachusetts
statute under which the Supreme Judicial Court acted included broad powers to
affect court proceedings that might not be impacted by the COVID-19 pandemic.
G.L.c. 211, § 3. Furthermore, from the very outset, the Supreme Judicial Court made
it clear that it intended to toll limitations in the traditional sense, going so far as to
give an example of the manner in which the order would toll a pending civil case.
Shaw’s Supermarkets, 173 N.E.3d at 359. Additionally, the circumstances of Shaw’s
Supermarkets do not include any subsequent orders expressly clarifying that the
original order merely served as an extension in a limited number of cases.
Accordingly, Shaw’s Supermarkets is inapplicable to the facts before us.
Conclusion
We conclude that the Eighth Emergency Order did not and could not have
operated to toll limitations of Homer’s claims in the traditional sense. Accordingly,
we overrule Homer’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE
October 10, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

3
Because the Texas Supreme Court purported to act under the authority of Section 22.0035(b) when
it issued the Eighth Emergency Order, our opinion is limited to an assessment of the court’s authority under
that statute. We do not comment on whether additional emergency powers might be available to the
supreme court or any other Texas court based on other principles, statutes, or constitutional provisions.
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