Texas Supreme Court Revives Time-Barred Civil Conspiracy Claim by Judicially 'Amending' the Statute of Limitations: A Critique of Agar Corp. v. Electro Circuits International, LLC, No. 17-0630 (Tex. 2019)

Abstract

The Texas Supreme Court recently held that a claim of civil conspiracy is a derivative tort that shares the statute of limitations of the underlying tort. Agar Corp., Inc. v. Electro Circuits Int'l, LLC, No. 17-0630, 2019 WL 1495211 (Tex., April 5, 2019, motion for rehearing denied Sep. 6, 2019). While this is not a bad rule from a public policy perspective, the Texas court of last resort for civil matters should have refrained from judicial activism in this area. Several arguments support this conclusion: Statutes of limitations are statutory in nature and should therefore be written and re-written (if need be) by the legislature. The Court here has, in effect, assumed the role of primary policymaker, without allowing for public input. The intermediate courts of appeal had universally held that civil conspiracy is subject to the two-year statute of limitations. Because there was not even a split among the intermediate courts of appeals, the trial court in Agar did not fail to follow controlling law in granting summary judgment based on limitations. Through its contrary decision, the Supreme Court in effect changed the rules of the game at the end of the game to pick a different winner; and threw out a long line of appellate court precedents in the process, calling them erroneous. The new rule of having a civil conspiracy claim governed by the SOL that applies to the underlying tort adversely affects other litigants because the Court did not make the effect of its newly-fashioned rule solely prospective. By adopting the SOL-LINKAGE RULE for civil conspiracy claims, the Texas Supreme Court provided a benefit to one particular corporate litigant before it--which had at least one of its time-barred claims revived--while at the same time cutting off the rights of others whose civil conspiracy claims involve a tort that is subject to a limitations period of less than two years. In those other cases, the newly devised synchronization rule has the effect of shortening the limitations period. Statutes of Limitations are properly named. They are statutes. Had the Texas Supreme Court left the matter to the Texas Legislature, the downsides of case-based policy-making by the court of last resort, and the associated inequities, could have been avoided. The application of a new rule would have been prospective, and would thus have been fairer to parties with pending claims.