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If a statute of limitations is tolled, can a higher court disallow it?

Discussion in 'Accidents, Injuries, Negligence' started by Beachwriter, Mar 16, 2021.

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  1. Beachwriter

    Beachwriter Law Topic Starter New Member

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    Jurisdiction:
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    Hello! This question is for a fictional incident in a novel, but I want it to seem realistic. If it's not appropriate to ask here, please feel free to moderate; I don't want to waste anyone's time!

    The fictional situation is that a wrongful death claim is filed outside the 2-year statute of limitations, but a corrupt judge has extended the statute of limitations in order to benefit the plaintiff. My question is, how would the defendant challenge the ruling so the suit can't go forward?

    Since this is fiction, the more drama the better. It takes place in a rural county in Texas. :)

    Thanks
     
  2. adjusterjack

    adjusterjack Super Moderator

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    He would have to file an appeal after the judgment.

    If the appeal had merit the appellate court would overturn the extension and invalidate the judgment.

    What was your fictional judge's reason for extending the SOL? Other than corruption, he would have had to have given some sort of basis for doing it. Even corrupt judges know that they can be overturned on appeal.
     
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  3. Beachwriter

    Beachwriter Law Topic Starter New Member

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    Thanks for this reply. It's really helpful. It's surprising that there can't be an appeal until after the judgment. Don't some of these cases take a long time to settle?

    And you're right, the judge is corrupt, but his stated reason for the extension is that the defendant left the state and changed her name. But that's a contrived reason since it's easy enough to find someone these days. The unstated reason is that the defendant is wealthy now (was indigent before), so there's something to gain by suing her.

    Another way to solve this might be that the corrupt judge is recused from hearing the case at the last minute, and an honest judge steps in and dismisses it because the defendant (main character of the novel) is clearly not guilty of wrongful death (criminal charge was previously dropped).

    Is that an option? I was watching "Your Honor" - the Brian Cranston series (which probably takes all kinds of liberties!) and they went to great lengths to make sure a certain judge was assigned a certain case.

    Thanks again!
     
  4. adjusterjack

    adjusterjack Super Moderator

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    Which is a legitimate reason for not counting the time out of state.

    But not required by the statute:

    Sec. 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 person's absence.

    2019 Texas Statutes :: Civil Practice and Remedies Code :: Title 2 - Trial, Judgment, and Appeal :: Subtitle B - Trial Matters :: Chapter 16 - Limitations :: Subchapter D. Miscellaneous Provisions :: Section 16.063. Temporary Absence From State

    If it's "unstated" then the judge didn't say it and that's just the loser's rant.

    Sure. Rarely happens but it's fiction so you can write it however you want.

    Also fiction. ;)
     
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  5. Beachwriter

    Beachwriter Law Topic Starter New Member

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    Thank you again. My plot is far-fetched but readers like a bit of verisimilitude. Another hypothetical--if a judge gets sick or is called away, is it likely they could keep the scheduled hearing if another judge is available?

    "Loser's rant" - love this.
     
  6. army judge

    army judge Super Moderator

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    Possibly, but usually the deceased judge's calendar is adjusted by the jurist taking on the deceased's cases.
     
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  7. zddoodah

    zddoodah Well-Known Member

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    So...the lawsuit is filed beyond the SOL. If the expiration of the SOL appears on the face of the complaint, the defendant would, presumably, attack the complaint by filing a motion to dismiss (assuming the case is in Texas, it would be done pursuant to the Texas equivalent of Rule 12(b)(6) of the Federal Rules of Civil Procedure). If the court denied the motion, then the case would proceed unless the defendant sought an interlocutory appeal. If the defect is not apparent from the face of the complaint, then the defendant might try to make a motion for summary judgment. If the court denied the motion, then, again, the case would continue. If the plaintiff then won at trial, the defendant would appeal. Note that interlocutory appeals are generally disfavored.

    Sorry, but there is little to no "drama" involved in civil motion practice.

    Not sure what "these cases" means, but yes, cases can be pending for a long time before settlement or resolution.

    The judge might be corrupt, but that reasoning isn't at all "contrived" b ecause the defendant's absence from the state tolls the statute of limitations, so what you're describing is a proper ruling. Also, while it might be easier to find folks now as compared to, e.g., 40 years ago, that doesn't mean it's "easy" to find someone who has moved and changed her name. However, at the end of the day, the name change isn't relevant.

    Why?

    Ever hear of O.J. Simpson? He was charged with murdering his ex-wife and another person. He was acquitted and then sued for wrongful death by the survivors of the two deceased persons, and Simpson was found civilly liable (there is no "guilty" or "not guilty" in civil court) for wrongful death. This illustrates that criminal charges being dropped does not make a person "clearly not [liable for] wrongful death."

    Possible? Sure. How likely or unlikely it is depends on particulars of the given courthouse.
     
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  8. Beachwriter

    Beachwriter Law Topic Starter New Member

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    Thanks, wow, all those legal dramas I've been watching are not as reliable as this forum!
     
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  9. Beachwriter

    Beachwriter Law Topic Starter New Member

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    Thanks for this info. In the fictional situation, the main character is a woman who killed the man in the act of raping her. She was charged with murder but later walked free based on the "no duty to retreat" defense. It was somewhat informed by the Brittany Smith case which I read about in The New Yorker & other media. ( How Far Can Abused Women Go to Protect Themselves? )

    But as you reminded us about OJ, the guy is still dead, and his family wants revenge.

    So I'm looking for a plausible way for the ruling to go against the plaintiff.

    Thank you again.

     
  10. Tax Counsel

    Tax Counsel Well-Known Member

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    Some rulings, and this would generally be one of them, can be appealed prior to final judgment in the case. That is known as an interlocutory appeal. Those appeals are appropriate where the ruling being appealed would resolve the matter now if the appeal is granted. If the SOL had expired, that issue should be resolved first before the parties spend months or years litigating a matter that might just get tossed on the SOL issue later.
     
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  11. adjusterjack

    adjusterjack Super Moderator

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    The plaintiff being the dead rapist's estate/family.

    One possibility is jury nullification (google it). The jury may find that the judge's ruling on the SOL was so reprehensible that they would ignore it and find in favor of the defendant.
     
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  12. Tax Counsel

    Tax Counsel Well-Known Member

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    Sorry, no. The statute of limitations (SOL) issue is in most cases simply a legal issue and legal issues are determined by the judge, not the jury. The jury determines the facts of the case, but the case won't even get to hear the case if the courts hold that the SOL had expired.

    Also note that jury nullification doesn't work in civil cases like it does in criminal cases. Why? Because there is no double jeopardy bar in civil cases and thus the jury doesn't have the final word in a civil case as it does when it acquits a defendant in a criminal case. If a jury clearly makes a wrong decision in a civil case, the courts may overturn that decision, and there are many instance of that found in case law.
     
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  13. Beachwriter

    Beachwriter Law Topic Starter New Member

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    I appreciate all the responses in this thread.
    Does the plaintiff have to appear in person? (assuming this is after the pandemic)
    If the plaintiff is your client in this case, what approach would you take to deal with the suit in order to get the best outcome for her?
    Thanks again.
     
  14. adjusterjack

    adjusterjack Super Moderator

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    Her? Do you mean defendant? I thought that the rape victim was being sued by the family of the rapist for killing him.
     
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  15. zddoodah

    zddoodah Well-Known Member

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    Appear for what? As a general matter, a plaintiff in a civil lawsuit does not have to appear in court for anything until the trial and, in some cases, it's not even necessary for the plaintiff to appear at trial. Of course, if the plaintiff is going to testify at trial, he/she will need to be there and, even if he/she won't testify, it might be a good idea to be there. Prior to the trial, the plaintiff may have to appear and give testimony at a deposition.

    If I had all of the relevant facts, my "approach" might require numerous pages to explain. In this case, we don't have enough facts to scratch the surface.
     
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  16. Beachwriter

    Beachwriter Law Topic Starter New Member

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    Oops, yes, sorry. The rape survivor would be your client and the plaintiff is the dead rapist's family.
     
  17. adjusterjack

    adjusterjack Super Moderator

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    Prove to the jury, by a preponderance of the evidence, that the killing of the rapist was justified.

    Here are many resources defining term:

    preponderance of evidence definition at DuckDuckGo
     
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  18. Beachwriter

    Beachwriter Law Topic Starter New Member

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    That would be a good option for this novel. I can see why a lot of lawyers make good novelists!

    In general, is it preferable to have a jury trial or a bench trial in a civil suit? And who gets to decide? I'm wondering which option would give the defendant (rape survivor) the better chance.
     
  19. Tax Counsel

    Tax Counsel Well-Known Member

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    That depends on a lot of factors, and which side of the case you are on. It may be that for one side a bench trial would be the better option, while the other would prefer a jury trial. Where juries are allowed, though, the usual result is a trial to jury.

    That depends on the rules for the jurisdiction in which the case will be tried. In many jurisdictions for any matter where a jury is possible the rule is that the case will go to a jury if either side wants a jury. That's why, as I noted above, most cases where you can have a jury end up going to a jury.

    That depends on all the details of the case, who the judge would be, and the general attitude of the public in the area from which the jurors would be drawn.
     
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  20. zddoodah

    zddoodah Well-Known Member

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    There is no general answer to this question, and I'll explain why based on a case I handled a long time ago. A kid went to a hotel in a foreign country. The hotel was branded with a well-known U.S. chain, but it was owned by a local company (independently owned and operated). The kid suffered a catastrophic injury and, upon his return to the U.S., filed suit against the franchisor. My firm was retained by the franchisor's insurance carrier to defend. The case was settled about a month before it was scheduled to go to trial. The plaintiff requested a jury trial. We absolutely would have preferred a bench trial.

    Generally, if on party wants it, it gets it (but it may depend on the rules of the relevant state or federal court). In the case I described, the plaintiff requested jury trial, and there was nothing we could do to prevent that.

    Impossible to say in the abstract, and there are WAY too many factors even to take a stab at this.
     
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