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Malone v. Sewell6/23/2005
imitations of the foreign state where an injury occurred when the claimant is not a resident of Texas. Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118, 126 (Tex. App.--Fort Worth 2000, no pet.). The relevant part of the statute reads as follows:
An action for damages for . . . personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect or default causing the . . . injury takes place in a foreign state . . . if:
(2)the action is begun in this state within the time provided by the laws of this state for beginning the action;
(3)for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect or default took place; . . . .
Tex. Civ. Prac. & Rem. Code Ann. § 71.031(a) (Vernon Supp. 2004-05). In applying the borrowing statute, we look to the claimant's residency at the time the cause of action accrued. Tullis, 45 S.W.3d at 125.
To determine whether the summary judgment evidence compels application of Washington's three-year limitations period to Malone's sexual assault, we must examine the evidence in light of the borrowing statute, the Texas statute of limitations, and the penal code definition of sexual assault. The borrowing statute applies if the sexual assault "took place" in Washington and Malone was a nonresident of Texas when the claim accrued. Tex. Civ. Prac. & Rem. Code Ann. § 71.031(a)(3); see Tullis, 45 S.W.3d at 125. The sexual assault "took place" in Washington if Sewell committed one or more of the acts defined by penal code section 22.011(a)(1) in Washington. Malone's petition does not specify whether the alleged sexual assault took place in Texas, Washington, or both states. Thus, to even reach the question of whether the borrowing statute applies, Sewell's summary judgment evidence must conclusively establish that if a sexual assault took place, it took place in Washington; that is, that Sewell committed one or more of the acts defined by penal code section 22.011(a)(1) in Washington. Sewell has not carried this heavy burden.
The summary judgment evidence does not prove conclusively that the alleged sexual assault took place in Washington. As we noted above, the evidence consists of Malone's deposition testimony and a few letters or journal entries. Sewell points to several pages in Malone's deposition as proof that the alleged sexual assault took place in Washington. But the testimony on those pages proves only that Malone was a resident of Washington from October 1996 through April 1998. We have carefully reviewed Malone's entire deposition and find no testimony proving that any of the specific conduct listed in penal code section 22.011(a)(1) took place in Washington. The only testimony concerning sexual contact of any kind in Washington appears on page 143 of Malone's deposition, as follows:
he used me sexually for gratification and then she would get up and walk away and it was not - it was not two-sided.
This testimony does not necessarily imply a sexual assault as defined by the penal code and does not conclusively prove that the alleged sexual assault took place in Washington.
Because the summary judgment evidence does not conclusively prove that the alleged sexual assault took place in Washington, we do not reach the question of whether the borrowing statute requires the application of Washington's three-year statute of limitations. Sewell did not establish her entitlement to summary judgment under Washington's statute of limitations.
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