Equitable tolling will not apply during the pendency of appeals on a case that ends up being dismissed on non-merits where the statute of limitations expires while that case is on appeal.
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Matthew M. Buschi


On June 16, 2023, the Texas Supreme Court issued its opinion in Levinson Alcoser Associates, L.P and Levinson Associates, Inc. f. El Pistolon II, Ltd, No. 21-00797 holding that where a Plaintiff brought a defective design claim against an architect which was dismissed for failure to include a certificate of merit[1] and then went through lengthy appeals during which time the statute of limitations expired on that exact same claim, equitable tolling did not apply to allow that Plaintiff to bring the case again because the statute of limitations had run out.

In Levinson, EL Pistolon sued Levinson for defective design and development of a commercial property that El Pistolon had engaged Levinson to provide architectural services on. El Pistolon brought this as a breach of contract claim and a negligence claim. El Pistolon originally sued Levinson in June 2010 but did not include a certificate of merit. In response to Levinson’s motion to dismiss, El Pistolon nonsuited and refiled the suit with a certificate of merit. Levinson filed another motion to dismiss, challenging the substance of the certificate this time, rather than its failure to be filed. The trial court denied Levinson’s motion to dismiss, but the case then went on a lengthy appellate journey with the court of appeals holding in 2015 that the certificate was deficient as to a breach of contract claim but was sufficient to sustain the negligence claim. The case then went to the Texas Supreme Court, which held that the certificate was also deficient as to the negligence claim and in 2017 remanded to the trial court to determine if the dismissal should be with or without prejudice. The trial court dismissed the case without prejudice. During the pendency of the original lawsuit and subsequent appellate journey, naturally the statute of limitations on the breach of contract and negligence claims expired. In 2018, El Pistolon filed a new suit against Levinson on the same claims as the 2010 petition and asserted equitable tolling with regards to the limitations issues. Levinson then moved for summary judgment on limitations grounds, and the trial court granted the motion and issued a take-nothing judgment.

The court of appeals reversed and then the case was brought to the Texas Supreme Court. The Texas Supreme Court held that equitable tolling did not apply, repeatedly emphasized that Texas precedent limits the application of equitable tolling to very few contexts[2], reversed the court of appeals and reinstated the trial court’s take-nothing judgment.

The question here is an interesting one. If you bring a suit on a claim, and if an issue that does not go to the merits (such as procedural) causes the case to be hung up in the appellate process where if you lose, the case will be dismissed and it will be as if it were never brought, can you then bring that claim again in a second case after the statute of limitations has expired during the appellate process and after ultimate dismissal of the first case, where you correct the non-substantive defect? The interesting bit here is that it is, for all intents and purposes, the second case is the exact same case as the first case that you have been attempting to prosecute the entire time. It cannot be said that you weren’t diligent in pursuing the claim. However, in Levinson, the Texas Supreme Court ruled that no, if the statute has run and the first case is dismissed, and therefore it is as if it were never brought, then the claim is now barred by limitations even though you had been prosecuting that claim the entire time.

The reasoning in Levinson certainly makes logical sense. Case A is brought before the limitations period expires but is hung up on appeals for years on a procedural issue that ultimately results in Case A’s dismissal without addressing the merits, so it is as if Case A was never brought. Case B, which is exactly the same as Case A in substance, is brought after the limitations period expired. Case B is therefore prohibited because it is after the limitations period and because Case A, which is treated as if it never existed, cannot have paused limitations from running because it “never existed”. Of course, the decision does raise some equitable questions given that it is a fiction that the case never existed, and the Plaintiff had been attempting to prosecute the claim the entire time. Nonetheless, the ruling in Levinson appears to lead to an important practical conclusion: if a case is brought on time and (1) it is on appeals on a non-merits issue that could ultimately result in dismissal and (2) if the statute of limitations expiration is looming, practitioners should bring the second case that is a mirror of the first case with the non-merits issue concurrently with the first case pending on appeal in order to preserve the claim from the expiration of limitations.


[1] The certificate of merit is a requirement under Texas law (Tex. Civ. Prac. & Rem. Code 150.002) that requires a plaintiff in a case against a licensed or registered professional architect, engineer, landscape architect, or land surveyor, to submit an affidavit of a professional holding the same license/registration in the same field vouching for the claim and setting forth the errors or omissions of the defendant licensed/registered professional, which is designed to prevent frivolous claims against such professionals.

[2] For example, the Court discusses the legal impediment rule from Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991) that tolls limitations on a legal malpractice claim during the pendency of the underlying case’s appeals as being expressly limited to the attorney malpractice context.

ABOUT THE AUTHOR: Matthew M. Buschi serves as Counsel at Rapp & Krock, PC in the Firm’s Litigation/Creditor Rights Group, where he represents parties in business litigation matters in trial and appellate courts as well as arbitration.


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