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recognizing that "[c]onclusory evidence ... is insufficient to meet the non-movant's burden under Rule 166a
Summary of this case from Mr. W Fireworks, Inc. v. NRZ Inv. Grp.Opinion
No. 20-0158
06-11-2021
Rodney DRAUGHON, Petitioner, v. Joycie JOHNSON, Respondent
Fields Alexander, Houston, Pro Se. McCall Bauersfeld, Bruce N. Patton, Dallas, McCall Hoerz, LaToya Alexander, Daniel McGuire, Dallas, for Petitioner. W. Bruce Monning, Dallas, Paul R. Leake, Mesquite, for Respondent.
Fields Alexander, Houston, Pro Se.
McCall Bauersfeld, Bruce N. Patton, Dallas, McCall Hoerz, LaToya Alexander, Daniel McGuire, Dallas, for Petitioner.
W. Bruce Monning, Dallas, Paul R. Leake, Mesquite, for Respondent.
Justice Busby delivered the opinion of the Court, in which Justice Guzman, Justice Lehrmann, Justice Boyd, and Justice Devine joined.
In this quiet title action, a person who alleges a mental incapacity seeks to prevent his aunt from evicting him from property he inherited, contending that a deed to the aunt he had signed years earlier is void due to his lack of capacity. The aunt moved for traditional summary judgment based on the statute of limitations, and the nephew invoked the unsound-mind tolling statute. The question before us is whether the aunt had the burden to negate unsound-mind tolling in order to conclusively establish her affirmative defense and obtain summary judgment.
We have answered this question yes many times as to other doctrines affecting the running of limitations, explaining recently that a "defendant who moves for summary judgment based on limitations must conclusively establish the elements of that defense" and "must also conclusively negate application of the discovery rule and any tolling doctrines pleaded as an exception to limitations." Erikson v. Renda , 590 S.W.3d 557, 563 (Tex. 2019). We answer yes again in this case. If a defendant prefers to place the burden on the plaintiff to raise a fact issue regarding any aspects of limitations on which the plaintiff would have the burden at trial, it is free to file a no-evidence motion for summary judgment as to those matters. Because the defendant in this case filed a traditional motion for summary judgment and did not conclusively negate unsound-mind tolling, we reverse the summary judgment in her favor.
BACKGROUND
In 2018, respondent Joycie Johnson sued to evict petitioner Rodney Draughon from the house where he was living. The justice of the peace ordered Draughon to vacate, so he appealed the eviction and filed this separate declaratory judgment action seeking to quiet title to the property. The county court at law later consolidated the cases.
Draughon alleged that he owned the property by virtue of intestate succession but that Johnson, his aunt, purported to have an adverse claim to the property. Johnson's claim was based on a 2006 warranty deed that Draughon signed conveying the property to Johnson, which listed the consideration as ten dollars "and other good and valuable consideration, receipt of which is hereby acknowledged." Draughon alleged that he did not have the mental capacity to sign the warranty deed and Johnson was aware of his incapacity, so her claim to the property was invalid.
Johnson answered and pled "the affirmative defense of the four (4) year Statute of Limitations," alleging that the deed had been recorded more than eleven years before Draughon filed suit. She also filed a motion for summary judgment on the ground that Draughon's suit was barred because it had not been brought within four years from the date the deed was signed. She attached the warranty deed to her motion as evidence.
In response, Draughon asserted that Johnson's motion for summary judgment was a no-evidence motion and she failed to allege that Draughon had no evidence to support his claim of lack of mental capacity. Draughon further contended that Johnson had the burden to produce evidence raising a genuine issue of material fact as to his mental capacity to sign a binding warranty deed, which she failed to do.
Draughon also offered his own evidence in support of his claim of lack of mental capacity, which he contended "by law tolls the statute of limitations." He attached to his response an affidavit from a licensed psychological associate, who stated that Draughon has diminished capacity and likely had it before 2006. Draughon also attached five affidavits from laypeople who knew him, observed his diminished capacity, and believed his "Intellectual Disability was obvious prior to 2006."
Johnson replied that her motion for summary judgment based on the four-year statute of limitations was not a no-evidence motion; instead, she had offered evidence establishing that Draughon failed to file suit to set aside the deed within four years of signing it. She also objected to each of Draughon's affidavits, contending that the licensed psychological associate failed to qualify as an expert and the other affidavits were conclusory. After a hearing, the trial court sustained Johnson's objections to the affidavits, struck them, and granted her motion for summary judgment.
Draughon appealed, arguing that the trial court erred in granting summary judgment because Johnson failed to conclusively negate the tolling doctrine after he had raised it. ––– S.W.3d ––––, 2020 WL 364144 (Tex. App.—Dallas 2020). The court of appeals affirmed. Id. at ––––. The court held that a claimant seeking to toll limitations based on unsound mind has the burden to produce evidence raising a fact issue regarding mental capacity. Id. at ––––. Therefore, once Johnson conclusively established that Draughon did not file the case within the statute of limitations, the burden was on Draughon to produce evidence of his unsound mind. Id. at ––––. Because the trial court properly struck all of Draughon's evidence, he did not meet his burden. Id.
Draughon also challenged the trial court's order striking his affidavits. The court of appeals upheld the order, holding that the affidavits were conclusory and lacked supporting facts. ––– S.W.3d at ––––. Draughon has not challenged that holding here.
Draughon petitioned this Court for review, asserting that when a traditional motion for summary judgment is based on the statute of limitations and the non-movant asserts that a tolling provision applies, it is the movant's burden to conclusively negate the application of the tolling provision. He argues that the courts of appeals are divided regarding which party has the burden on summary judgment when unsound-mind tolling is claimed and urges this Court to settle the matter. See, e.g., Rollins v. Pressler , 623 S.W.3d 918, 926–31 (Tex. App.—Houston [1st Dist.] Feb. 25, 2021, pet. filed) (collecting cases). We granted Draughon's petition for review.
ANALYSIS
In this Court, Draughon argues that when a defendant moves for traditional summary judgment based on the statute of limitations and the plaintiff asserts that a tolling provision applies, the defendant has the burden to negate conclusively the application of that provision. He contends that tolling provisions should be treated like the discovery rule, which we have held the defendant must negate on summary judgment if raised even though the plaintiff would have the burden of proof on that issue at trial. See Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 834 (Tex. 2018) (per curiam) ("In cases in which the plaintiff pleads the discovery rule, the defendant moving for summary judgment on limitations bears the additional burden of negating the rule.").
Johnson counters that a defendant may conclusively establish its limitations defense by proving when the claim accrued and when suit was filed or served, at which point the burden shifts to the plaintiff to offer evidence of any grounds for extending the time by which suit should have been filed. She urges us to treat tolling provisions like a plaintiff's allegations of fraudulent concealment or equitable estoppel, on which we have held the plaintiff must raise a fact issue to avoid summary judgment. See Nichols v. Smith , 507 S.W.2d 518, 521 (Tex. 1974) (holding it was plaintiff's "burden ... to come forward with proof raising an issue of fact with respect to fraudulent concealment" to "avoid the [limitations] defense").
To evaluate the parties’ arguments, we begin by addressing the burden of a defendant moving for traditional summary judgment as compared to no-evidence summary judgment. We then examine our precedent addressing what this burden includes in the context of a defendant's traditional motion for summary judgment on the affirmative defense of limitations. Finally, we apply our precedent to the issue of unsound-mind tolling.
I. A defendant moving for traditional summary judgment has the burden to conclusively establish its affirmative defense.
A court must grant a "traditional" motion for summary judgment "forthwith if [the summary judgment evidence] show[s] that ... there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out." TEX. R. CIV. P. 166a(c). This rule is similar to the federal rule, which courts have interpreted to permit "summary judgment, after adequate time for discovery and upon motion, against a party who fails to ... establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
We have interpreted the Texas rule differently, explaining that "[t]he presumptions and burden of proof for an ordinary or conventional trial are immaterial to the burden that a movant for summary judgment must bear." Missouri-Kansas-Texas R.R. v. City of Dallas , 623 S.W.2d 296, 298 (Tex. 1981) ; see Chavez v. Kan. City So. Ry. Co. , 520 S.W.3d 898, 900 (Tex. 2017) (per curiam). Under our traditional rule, courts "never shift the burden of proof to the non-movant unless and until the movant has ‘establish[ed] his entitlement to a summary judgment ... by conclusively proving all essential elements of his cause of action or defense as a matter of law.’ " Casso v. Brand , 776 S.W.2d 551, 556 (Tex. 1989) (quoting City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979) ); see KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015). "[T]he non-movant's failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant's right." Clear Creek Basin Auth. , 589 S.W.2d at 678 ; see Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999).
Texas brought its summary judgment practice closer to that of the federal courts by adopting a distinct "no evidence" motion for summary judgment in 1997. Similar to a pre-trial motion for directed verdict, this motion allows a party to seek summary judgment without presenting evidence by asserting, after adequate time for discovery, that no evidence supports one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The burden then falls entirely on the adverse party to produce summary judgment evidence raising a genuine issue of material fact. Id. Conclusory evidence, for example, is insufficient to meet the non-movant's burden under Rule 166a(i). See Elizondo v. Krist , 415 S.W.3d 259, 264 (Tex. 2013). The no-evidence rule does not, however, modify the standards for granting a traditional motion for summary judgment under Rule 166a(c).
See Huckabee v. Time Warner Ent. Co. , 19 S.W.3d 413, 421 (Tex. 2000). Parties may combine traditional and no-evidence motions in a single hybrid filing and attach evidence so long as they clearly set forth their grounds and otherwise meet the requirements for each motion. See Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013).
Here, Johnson would have had the burden to establish her affirmative defense of limitations at trial. See Woods v. William M. Mercer, Inc. , 769 S.W.2d 515, 517 (Tex. 1988). She filed a motion for summary judgment based on the four-year statute of limitations and attached evidence showing the date the deed was signed. She did not state that there was no evidence of any matter on which Draughon would have the burden of proof at trial, nor had an adequate time for discovery elapsed. As Johnson recognizes, therefore, her motion was solely a traditional one.
"A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense." Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 593 (Tex. 2017) (quoting KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp. , 988 S.W.2d 746, 748 (Tex. 1999) ). We review de novo whether Johnson met her burden. Id. at 579.
II. The defendant has the burden regarding any issues raised that affect the running of limitations, while the plaintiff has the burden to raise a fact issue on equitable defenses that defeat limitations even though it has run.
The parties disagree regarding precisely what a defendant moving for traditional summary judgment must prove to establish conclusively that the applicable statute of limitations has expired. Our cases show that matters relevant to limitations generally fall into one of two categories that determine the parties’ respective burdens on summary judgment. First, the defendant has the burden regarding any issues raised that affect which days count toward the running of limitations—such as accrual, the discovery rule, and tolling. E.g., Erikson , 590 S.W.3d at 563. Second, if the defendant carries that burden and conclusively establishes its defense, the plaintiff can avoid summary judgment by raising a genuine issue of material fact on any equitable defense that its suit should not be barred even though the limitations period has run—such as fraudulent concealment, estoppel, or diligent service. E.g., Rincones , 520 S.W.3d at 593 ; Murray v. San Jacinto Agency, Inc. , 800 S.W.2d 826, 830 (Tex. 1990) ; Nichols , 507 S.W.2d at 521.
A. Issues that affect the running of limitations
In defining the first category of issues, on which the defendant has the burden, we begin with the statute establishing the defense. Many of our Texas statutes of limitations—including the four-year statute on which Johnson relies—provide that "[a] person must bring suit ... [for the specified cause of action] not later than [the applicable number of] years after the day the cause of action accrues." Thus, to obtain traditional summary judgment on a limitations defense, the defendant must conclusively prove (1) when the cause of action accrued, and (2) that the plaintiff brought its suit later than the applicable number of years thereafter—i.e., that "the statute of limitations has run." Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 220 (Tex. 2004) ; see Delgado v. Burns , 656 S.W.2d 428, 429 (Tex. 1983) (per curiam) (noting that moving defendant "assumed the burden of showing as a matter of law that the suit was barred by limitations").
E.g. , Tex. Civ. Prac. & Rem. Code §§ 16.002(a), .003(a)–(b), .004(a), .0045(a)–(b), .005(a), .006(a)–(b), .009(d), .024, .025(a), .026(a), .027, .051; Tex. Alco. Bev. Code § 102.82.
In all cases, "a defendant moving for summary judgment on the affirmative defense of limitations bears the burden of conclusively establishing ... when the cause of action accrued." Pasko , 544 S.W.3d at 833–34. In addition, a plaintiff may raise an issue regarding which days after this accrual date should count toward showing that the number of years in the limitations period expired before suit was filed. We have held that issues affecting the limitations calculation also become part of the defendant's traditional summary judgment burden when they are properly raised.
One such issue is the discovery rule. See KPMG Peat Marwick , 988 S.W.2d at 748 ("[T]he defendant must ... negate the discovery rule, if it applies and has been pleaded or otherwise raised...."). In cases where "the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred but may be objectively verified," the discovery rule changes the first day that counts toward the limitations period, deferring accrual "until the plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury." S.V. v. R.V. , 933 S.W.2d 1, 4, 6 (Tex. 1996).
See also Pasko , 544 S.W.3d at 834 ; Pustejovsky v. Rapid-Am. Corp. , 35 S.W.3d 643, 646 (Tex. 2000) ; Velsicol Chem. Corp. v. Winograd , 956 S.W.2d 529, 530 (Tex. 1997) (per curiam) ; Weaver v. Witt , 561 S.W.2d 792, 793–94 (Tex. 1977) ("To be entitled to summary judgment, the burden is on the movant, defendant here, to negate the pleading of the discovery rule by proving as a matter of law that there is no genuine issue of fact concerning the time when the plaintiff discovered or should have discovered the nature of the injury.").
The plaintiff must first raise the discovery rule, as the defendant "cannot be expected to anticipate" whether the plaintiff will contend it applies. Woods , 769 S.W.2d at 518. At trial, "[t]he [plaintiff] seeking to benefit from the discovery rule must also bear the burden of proving and securing favorable findings thereon" as it will "generally have greater access to the facts necessary to establish that it falls within the rule." Id.
See also Via Net v. TIG Ins. Co. , 211 S.W.3d 310, 313 (Tex. 2006) (per curiam) ; In re Estate of Matejek , 960 S.W.2d 650, 651 (Tex. 1997) (per curiam).
But "on motion for summary judgment, the burden is on the defendant to negate the discovery rule." Id. at 518 n.2. As discussed above, the burden does not shift to the plaintiff until the defendant has conclusively established its entitlement to traditional summary judgment, and the burden at trial is immaterial. Id. ; see also Rhone-Poulenc , 997 S.W.2d at 223–24 (rejecting argument that plaintiff opposing traditional summary judgment based on discovery rule bears burden like that plaintiff would face in responding to no-evidence motion). A defendant moving for traditional summary judgment may negate the discovery rule "by either conclusively establishing that (1) the discovery rule does not apply, or (2) if the rule applies, the summary judgment evidence negates it." Pasko , 544 S.W.3d at 834.
The plaintiff need not offer evidence regarding discovery to put the defendant to this burden. Under our notice-pleading standard, a plaintiff is not required to "set out in his pleadings the evidence upon which he relies." Paramount Pipe & Supply Co. v. Muhr , 749 S.W.2d 491, 494–95 (Tex. 1988).
Of particular relevance here, we have concluded that the burden is the same for tolling doctrines raised by the plaintiff: "[a] defendant who moves for summary judgment based on limitations must ... conclusively negate application of ... any tolling doctrines pleaded as an exception to limitations." Erikson , 590 S.W.3d at 563 (holding that defendant moving for traditional summary judgment on legal malpractice claim had burden to negate common-law Hughes tolling during pendency of underlying case); see, e.g., Diaz v. Westphal , 941 S.W.2d 96, 97–98 (Tex. 1997) ("A defendant who moves for summary judgment based on limitations must establish the defense as a matter of law. To satisfy this burden, the defendant must conclusively negate any relevant tolling doctrines the plaintiff asserted in the trial court." (internal citations omitted)); Jennings v. Burgess , 917 S.W.2d 790, 793 (Tex. 1996) ("If the nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision's application to show his entitlement to summary judgment."). Texas commentators agree. We discussed the reasons for this placement of the burden in two cases. In Oram v. General American Oil Co. of Texas , the court of appeals had affirmed summary judgment for the defendant based on limitations, reasoning that the plaintiff failed to establish the applicability of a statute tolling limitations during the pendency of a prior suit dismissed for lack of jurisdiction (now section 16.064 of the Civil Practice and Remedies Code ). 513 S.W.2d 533, 534 (Tex. 1974) (per curiam). We reversed based on the traditional summary judgment standard, observing that "the non-movant has no burden in response to a summary judgment motion unless the movant has conclusively established his defense." Id. As we explained,
Our dissenting colleagues contend that Erikson is distinguishable because Hughes tolling is not really tolling; rather, like the discovery rule, it defers accrual until the conclusion of the underlying lawsuit in which the alleged legal malpractice occurred. Post at ––––. That is not correct. As we said in Erikson , a legal injury occurs "when faulty professional advice is taken," and a legal malpractice claim accrues either then or, under the discovery rule, when "the client discovers, or should discover, the wrongful act and injury." 590 S.W.3d at 563. But the plaintiff's suit in Erikson was untimely under both the legal-injury rule and the discovery rule, so we had to decide whether Hughes tolled the statute "until all appeals on the underlying claim [were] exhausted." Id.
See, e.g. , 5 William V. Dorsaneo III, Texas Litigation Guide § 72.09 (2021) ("the movant has the burden on all issues, including, if necessary, negating the applicability of tolling provisions or the discovery rule"); 6 Roy McDonald & Elaine A. Carlson , Texas Civil Practice: Appellate Practice § 28:22 (2d ed.) (updated Dec. 2020) ("the burden is on the defendant who is seeking summary judgment to prove as a matter of law that the statute of limitations was not tolled"); David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice , 60 S. Tex. L. Rev. 1, 100 (2019) ("the burden is on the movant to negate the applicability of the tolling statute"); Timothy Patton , Summary Judgments in Texas § 9.04[2] (3d ed. 2003) ("[O]nce the non-movant ‘interposes’ a statute that tolls or suspends the running of limitations, the limitations defense is not conclusively established until the movant meets his burden of negating the applicability of the statute.").
[t]he defense of the movants in this case was the bar of limitations. This bar was not established conclusively since the contention was being made that under [the statute] limitations ceased to run.... It would be a different matter if the movant had established the limitations defense and the non-movant had then sought to interpose an estoppel to avoid movant's limitations defense. The non-movant would then be required to raise a fact issue with respect to the estoppel.
Id.
The following year, in Zale Corp. v. Rosenbaum , we applied the same rule to a statute tolling limitations during the defendant's absence from the state (now section 16.063 of the Civil Practice and Remedies Code ). 520 S.W.2d 889, 891 (Tex. 1975) (per curiam). Again, the court of appeals had affirmed summary judgment for the defendant based on limitations, holding that the plaintiff had the burden of proof on the suspension statute and had not shown that the defendants were present in Texas for less than the limitations period. Id.
The plaintiff in Zale also sought to defeat the limitations defense on a second, independent theory: that it had exercised diligence in procuring issuance and service of citation. 520 S.W.2d at 890. We discuss that theory below.
We reversed because the court of appeals misplaced the burden. Id. "When summary judgment is sought on the basis that limitations have expired, it is the movant's burden to conclusively establish the bar of limitations. Where the non-movant interposes a suspension statute, ... the limitation defense is not conclusively established until the movant meets his burden of negating [its] applicability...." Id. We also reiterated Oram ’s
distinction between pleas by the non-movant which challenge the existence of limitations, such as [the tolling statute], and those which do not challenge the limitations defense, but are affirmative defenses in the nature of confession and avoidance. In the latter instance, the non-movant does have the burden of raising a fact issue with respect to [the movant's] affirmative defense. Nichols v. Smith , 507 S.W.2d 518 (Tex. 1974) [fraudulent concealment]; ‘Moore’ Burger, Inc. v. Phillips Petroleum Co. , 492 S.W.2d 934 (Tex. 1973) [estoppel].
See also 6 McDonald & Carlson , Texas Civil Practice § 28:22 ("A special rule applies where the defendant seeks summary judgment based on the statute of limitations and the nonmoving party raises the tolling of the statute. In such a situation, the burden is on the defendant who is seeking summary judgment to prove as a matter of law that the statute of limitations was not tolled. Where the effort to escape the statute of limitations is in the nature of avoidance (e.g. , estoppel), the nonmovant has the burden of raising a fact issue with respect to the avoidance to defeat summary judgment.").
We have identified only one variation regarding the defendant's burden to negate tolling. The statute tolling limitations during the pendency of a prior suit—which Oram held a defendant must negate if raised—has a statutory exception that eliminates tolling if the plaintiff filed that suit "with intentional disregard of proper jurisdiction." TEX. CIV. PRAC. & REM. CODE § 16.064(b). In In re United Services Automobile Ass'n , the defendant moving for summary judgment on limitations argued it had "met its burden [on this exception] through circumstantial evidence of [the plaintiff's] intent." 307 S.W.3d 299, 312 (Tex. 2010). We agreed, explaining that once the defendant had "moved for relief under the ‘intentional disregard’ provision, the nonmovant must show that he did not intentionally disregard proper jurisdiction when filing the case." Id. But we left undisturbed the holdings discussed above regarding the defendant's overall burden to negate tolling in cases not involving the statutory exception for intentional disregard.
In sum, a plaintiff's assertion that the statute of limitations was tolled falls within the category of issues affecting the running of limitations on which the moving defendant bears the burden. To obtain traditional summary judgment on the ground that the limitations period expired before the plaintiff brought suit, the defendant must conclusively negate any tolling doctrines asserted. We address the application of this principle to unsound-mind tolling specifically in Part III below.
B. Equitable defenses that defeat limitations even though it has run
As Oram and Zale indicate, there is a second category of defensive issues that can overcome the statute of limitations even if the defendant conclusively proves that it has run. On these issues, which do not challenge any of the elements of the limitations defense but offer independent reasons for avoiding dismissal, the non-moving plaintiff has the burden to raise a genuine issue of material fact to avoid summary judgment. This approach is consistent with our traditional summary judgment practice, which requires the defendant to prove conclusively only the grounds presented by its motion. See Clear Creek Basin Auth. , 589 S.W.2d at 678. If the non-moving plaintiff wishes to go beyond "attack[ing] ... the legal sufficiency of the [defendant's] grounds" and "present to the trial court any reasons seeking to avoid movant's entitlement, such as those set out in [Rules of Civil Procedure] 93 and 94, ... [the plaintiff] must present summary judgment proof when necessary to establish a fact issue." Id. ; see KPMG Peat Marwick , 988 S.W.2d at 748 (applying this standard in limitations context).
Many of the defensive issues that avoid limitations even though it has run are equitable in nature and appear in Rules 93 and 94. One such matter set out in Rule 94 is fraud; we have recognized that fraudulent concealment—"which is based upon the doctrine of equitable estoppel"—can "estop[ ] a defendant from relying on the statute of limitations as an affirmative defense to plaintiff's claim." Borderlon v. Peck , 661 S.W.2d 907, 908 (Tex. 1983). When "the defense of the statute of limitations is established by the record as a matter of law, and [plaintiffs] are relying on fraudulent concealment to avoid that defense," it is "their burden ... to come forward with proof raising an issue of fact with respect to fraudulent concealment ... [to] defeat [defendant's] right to a summary judgment." Nichols , 507 S.W.2d at 521 ; see Am. Petrofina, Inc. v. Allen , 887 S.W.2d 829, 830 (Tex. 1994) (explaining that fraudulent concealment is "in the nature of an affirmative defense to [defendant's] limitations claim" and therefore plaintiff must raise fact question on each element).
Our dissenting colleagues wonder whether misidentification of a defendant would fall within this category of independent reasons to avoid limitations or the previous category of issues affecting the running of limitations. Post at ––––. The narrow doctrine allowing misidentification to defeat limitations involves a defect of parties. See Tex. R. Civ. P. 93(4) ; Enserch Corp. v. Parker , 794 S.W.2d 2, 4–5 (Tex. 1990). It is also equitable in nature, applying if the correct party had notice of the suit and was not misled or disadvantaged by the mistake. See In re Greater Hous. Orthopaedic Specialists, Inc. , 295 S.W.3d 323, 325 n.1 (Tex. 2009) (per curiam). Accordingly, it belongs in this category.
Another equitable doctrine that is rooted in fraud and raises issues similar to those listed in Rules 93 and 94 is that a "suit against a corporation tolls limitations as to the alter ego of the corporation." Matthews Constr. Co. v. Rosen , 796 S.W.2d 692, 693 (Tex. 1990) (citing Gentry v. Credit Plan Corp. , 528 S.W.2d 571 (Tex. 1975) ). This doctrine is "based on the same equitable considerations that allow for piercing the corporate veil," id. , and its purpose is "to prevent use of the corporate entity as a cloak for fraud or illegality or to work an injustice." Gentry , 528 S.W.2d at 575.
See also ExxonMobil Corp. v. Lazy R Ranch , 511 S.W.3d 538, 544 (Tex. 2017) ; Shah v. Moss , 67 S.W.3d 836, 841 (Tex. 2001) ; Earle v. Ratliff , 998 S.W.2d 882, 888 (Tex. 1999) (discussing evidence of fraudulent concealment that could raise fact issue to avoid summary judgment on limitations); KPMG Peat Marwick , 988 S.W.2d at 749–50 ; S.V. , 933 S.W.2d at 4 (distinguishing fraudulent concealment from the discovery rule).
Another matter listed in Rule 94 that a plaintiff can assert as a defense to limitations is estoppel. "[E]ven when [limitations is] conclusively established, a plaintiff may invoke equitable estoppel as an affirmative defense in avoidance of a defendant's limitations defense. In that situation, the non-moving plaintiff ... must present summary-judgment evidence raising a fact issue on each element" of his estoppel defense. Rincones , 520 S.W.3d at 593 (citations omitted); see also Oram , 513 S.W.2d at 534.
Although we have also recognized the discovery rule's equitable underpinnings and described it at times as a plea in confession and avoidance, see Woods , 769 S.W.2d at 517, we have explained more recently that the discovery rule attacks a key element of the defendant's limitations defense: when the cause of action accrued. E.g., Pasko , 544 S.W.3d at 833–34 ; KPMG Peat Marwick , 988 S.W.2d at 748 ; Murphy v. Campbell , 964 S.W.2d 265, 270–71 (Tex. 1997). Thus, as explained in Part II.A. above, the discovery rule falls into the first category of issues that affect the running of limitations, and a defendant seeking traditional summary judgment has the burden to negate the rule in order to prove its defense conclusively.
Outside of Rule 94, we have recognized that "diligence in procuring service" on the defendant "after the limitations period expired" can provide a basis for avoiding a limitations defense. Ashley v. Hawkins , 293 S.W.3d 175, 179 (Tex. 2009) ; Rigo Mfg. Co. v. Thomas , 458 S.W.2d 180, 182 (Tex. 1970). "Mere filing of suit ... will not interrupt the running of limitations unless due diligence is exercised in the issuance and service of citation." Murray , 800 S.W.2d at 830. "[W]hen failure to timely serve the defendant has been shown," the defendant moving for summary judgment has carried its burden to prove conclusively that limitations expired, and "the burden shifts to the plaintiff ... to explain the delay." Id. The plaintiff may avoid summary judgment on limitations if its "explanation for the delay raises a material fact issue concerning the diligence of service efforts." Proulx v. Wells , 235 S.W.3d 213, 216 (Tex. 2007) (per curiam).
The question of diligent service is distinct from tolling: after rejecting the application of a tolling statute in Ashley and concluding that the limitations period expired before the defendant was served, we examined whether the plaintiff had raised a fact issue on diligent service. 293 S.W.3d at 179.
In each of these situations, the plaintiff contends that dismissal is improper for a reason independent of the defendant's conclusive showing that the limitations period expired. To avoid summary judgment, the plaintiff must offer evidence creating a fact issue regarding that reason.
III. The defendant has the burden to conclusively negate a claim of unsound-mind tolling.
We next apply these principles to the statutory tolling doctrine Draughon has raised here. In his petition, Draughon alleged that he "did not have the mental capacity to legally sign the warranty deed ... and [Johnson] knew of his incapacity." Then, in response to Johnson's traditional motion for summary judgment based on limitations, Draughon raised the issue of his mental incapacity and asserted that section 16.001 of the Civil Practice and Remedies Code tolled the limitations period.
Section 16.001 provides that "[i]f a person entitled to bring a personal action is under a legal disability"—defined as under 18 years old or "of unsound mind"—"when the cause of action accrues, the time of the disability is not included in a limitations period." TEX. CIV. PRAC. & REM. CODE § 16.001(a), (b). The disability must exist when the limitations period starts. Id. § 16.001(d).
This tolling statute and its predecessors are as old as Texas. And we have recognized that tolling serves the constitutional goal of ensuring that the statute of limitations does not unreasonably deny those with mental disabilities access to our courts. See TEX. CONST. art. I, § 13 ; Tinkle v. Henderson , 730 S.W.2d 163, 166–67 (Tex. App.—Tyler 1987, writ ref'd) (holding limitations statute without tolling provision for mental incompetence unconstitutional). Not only are people of unsound mind "less likely than [minors] to have someone intimately interested in their welfare and inclined to act in their behalf," id. , they may be less able "to participate in, control, or even understand the progression and disposition of their lawsuit." Ruiz v. Conoco, Inc. , 868 S.W.2d 752, 755 (Tex. 1993).
See An Act of Limitations 5th Cong., R.S. Sec. 11 (Feb. 5, 1841), 1841 Repub. Tex. Laws 163, 166, reprinted in 2 H.P.N. Gammel , The Laws of Texas 1822–1897, at 627. 630 (Austin Gammel Book Co. 1898); Tex. Rev. Civ. Stat. Ann. art. 3201 (1879).
Before Texas adopted a rule authorizing summary judgment, we explained in a case addressing unsound-mind tolling that "[t]he law presumes every party to a legal contract to have had sufficient mental capacity to understand his legal rights." Swink v. City of Dallas , 36 S.W.2d 222, 224 (Tex. Comm'n App. 1931, holding approved). "[T]o overcome this legal presumption" and "submit an issue to the jury," the "burden of proof rests upon the party asserting [incapacity] to ... present an issue of fact" in its favor. Id. Because the plaintiff had presented a fact issue regarding her incapacity, we held that the trial court erred in directing a verdict for the defendant. Id. at 226.
If the plaintiff did so, we explained that the defendant would have the burden at trial to establish its limitations defense on the subject of incapacity by a preponderance of the evidence. Swink , 36 S.W.2d at 224.
But as explained in Part I above, the presumptions and burden of proof at trial are immaterial in determining the movant's burden on traditional summary judgment. Missouri-Kansas-Texas R.R. , 623 S.W.2d at 298. We recently reiterated that "a summary judgment movant may not use a presumption to shift to the non-movant the burden of raising a fact issue." Chavez , 520 S.W.3d at 900.
We do not "[i]gnor[e] the legal presumption of sound mind," as the dissent contends. Post at 97. Rather, we explain why our precedent dictates that the presumption is inapplicable in deciding a traditional motion for summary judgment.
Instead, unsound-mind tolling falls within the general rule discussed in Part II.A. that "[w]here the non-movant interposes a suspension statute, ... the limitation defense is not conclusively established until the movant meets his burden of negating [its] applicability." Zale Corp. , 520 S.W.2d at 891 ; see Erikson , 590 S.W.3d at 563 ; Diaz , 941 S.W.2d at 97–98 ; Jennings , 917 S.W.2d at 793 ; Oram , 513 S.W.2d at 534. Unlike fraudulent concealment, equitable estoppel, and diligent service, which offer independent grounds for avoiding dismissal even if the limitations period has expired, invoking the unsound-mind tolling statute challenges whether the defendant has conclusively proven that the period in fact expired.
See Patton , Summary Judgments in Texas § 9.04[2] ("Since the non-movant is challenging the very existence of the limitations defense by raising a suspension statute, in contrast to a plea which does not challenge the defense but is in the nature of confession and avoidance, the non-movant does not have the burden to produce proof raising a fact issue on the applicability of the statute.")
Johnson urges us to place the burden on the defendant to disprove the discovery rule but on the plaintiff to raise a fact issue regarding tolling. Not only is such a distinction contrary to our precedent discussed in Part II.A., but we also see no compelling reason why it should be drawn. For example, the unsound-mind tolling statute effectively operates to delay accrual of a claim, perhaps indefinitely: it operates only if the plaintiff is under a disability when the "limitations period starts" and provides that "the time of the disability is not included in [the] period." TEX. CIV. PRAC. & REM. CODE § 16.001(b), (d). It also makes practical sense to treat unsoundness of mind like the discovery rule: if you are of unsound mind, it will be more difficult for you to discover your injury. Plaintiffs with mental disabilities are certainly not less deserving of access to court than plaintiffs who invoke the discovery rule.
Furthermore, a defendant must conclusively prove that limitations has run to be entitled to summary judgment, and both the discovery rule and tolling doctrines challenge whether it has done so. Thus, there is no reason to treat them differently in deciding which party has the burden on summary judgment. We decline Johnson's invitation to overrule Erikson, Diaz, Jennings , Zale , and Oram —and to create an exception to our standards for traditional summary judgment—in order to shift the burden of proof on tolling to the non-moving plaintiff.
Our dissenting colleagues contend that the "mere assertion " of a tolling doctrine by the plaintiff "does not raise a fact issue that overcomes the [defendant's] evidence otherwise establishing that limitations has run," and that evidence supporting tolling is necessary to defeat summary judgment. Post at 101. This contention focuses on the wrong step of the traditional summary judgment analysis. A plaintiff responding to a traditional motion for summary judgment has no burden to produce evidence raising a fact issue unless the defendant first conclusively establishes its defense. See Part I, supra. And as our cases explain, a defendant does not conclusively establish its limitations defense until it negates any tolling doctrines asserted. See Part II.A., supra ; Zale , 520 S.W.2d at 891 ; Oram , 513 S.W.2d at 534. Thus, it is not the plaintiff's initial burden to offer evidence raising a fact issue regarding an asserted tolling doctrine; rather, asserting such a doctrine helps define the defendant's burden at the first step of the analysis.
The dissent also advocates a special rule that would apply only to unsound-mind tolling, arguing that we should shift the summary judgment burden to the plaintiff based on the legal presumption of sound mind. Post at ––––. But our precedents offer no sound basis for drawing such a distinction: the rationale of Erikson and our other cases applies equally to all tolling doctrines, and we have held repeatedly that presumptions at trial are immaterial in determining the movant's burden on traditional summary judgment. See Parts I & II.A., supra. Chipping away at doctrinal consistency in this manner will only sow confusion. "[I]n the area of limitations, bright-line rules generally represent the better approach and help ensure predictability and consistency in the jurisprudence." Erikson , 590 S.W.3d at 566 (internal quotation marks omitted).
The dissent's final reason for shifting the burden to the plaintiff to raise a fact issue on unsound-mind tolling is that a "party asserting a legal disability based on unsound mind is the party with the best access to the information to prove it." Post at 101. Of course, the same is true of the discovery rule: the plaintiff "will generally have greater access to the facts necessary to establish that it falls within the rule," and that is why it has the burden to prove the rule at trial. Woods , 769 S.W.2d at 518. But better access to information does not alter the burden on traditional summary judgment, as we recognized in Woods . Id. at 518 n.2. It is unclear why unsound-mind tolling should be treated differently.
Our dissenting colleagues’ proposed rule would also be difficult for courts to apply consistently. For example, which party can get the best information regarding how long a prior suit was pending for purposes of statutory tolling under section 16.064, or when all appeals were exhausted for purposes of Hughes tolling?
More fundamentally, however, there is no reason to demolish a wing of our precedent on limitations and traditional summary judgment and thereby destabilize the remaining structure just to align the burden with greater access to information. That is exactly why we have a no-evidence motion for summary judgment. If a plaintiff invokes the discovery rule or a tolling doctrine that it would have the burden to prove at trial, the defendant urging limitations is free to file a hybrid motion for summary judgment that asserts a no-evidence ground as to that element, thus requiring the plaintiff to come forward with evidence raising a genuine issue of material fact. For all these reasons, we adhere to our standards for traditional summary judgments and our precedent that a defendant seeking summary judgment on limitations has the burden regarding any tolling doctrines asserted.
Tex. R. Civ. P. 166a(i) ; see, e.g., Haas v. George , 71 S.W.3d 904, 911–13 (Tex. App.—Texarkana 2002, no pet.) ; In re Estate of Fawcett , 55 S.W.3d 214, 221–22 (Tex. App.—Eastland 2001, pet. denied) ; Hittner & Liberato, 60 S. Tex. L. Rev. at 154 ; Patton , Summary Judgments in Texas § 9.04[1] (explaining that hybrid motion on limitations may consist of two parts: one conclusively establishing with evidence that plaintiff filed suit after expiration of the applicable statute of limitations, and another stating there is no evidence regarding matters raised in response to limitations on which plaintiff would have the burden of proof at trial). Similarly, some defendants employ this hybrid approach when faced with employment discrimination claims that employ a burden-shifting framework, moving for no-evidence summary judgment on the elements for which the plaintiff has the burden. See Kaplan v. City of Sugar Land , 525 S.W.3d 297, 303 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
CONCLUSION
In this case, Johnson moved for traditional summary judgment on limitations and Draughon raised the unsound-mind tolling statute. Johnson therefore had the burden to "conclusively negate" Draughon's assertion of mental incapacity. Erikson , 590 S.W.3d at 563. Because Johnson offered no evidence regarding Draughon's soundness of mind, she failed to carry her burden, and the court of appeals erred in affirming the trial court's order granting her summary judgment. We therefore reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.
Justice Bland filed a dissenting opinion, in which Chief Justice Hecht, Justice Blacklock, and Justice Huddle joined.
Justice Bland, joined by Chief Justice Hecht, Justice Blacklock, and Justice Huddle, dissenting.
Statutes of limitation require those who seek redress to sue within a reasonable time after suffering a legal injury. Claims brought outside the applicable statute, absent proof of an exception, are time-barred. Ignoring the legal presumption of sound mind, the Court concludes that unsound-mind tolling is not an "independent ground[ ] for avoiding dismissal," and thus excuses a plaintiff from producing a scintilla of evidence demonstrating unsound mind in response to evidence that establishes that limitations has run. The text of the tolling statute and a trenchant review of our precedent compel a different conclusion.
Comput. Assocs. Int'l, Inc. v. Altai, Inc. , 918 S.W.2d 453, 455 (Tex. 1996).
Ante at 95.
Once a defendant proves with competent summary-judgment evidence that limitations has run, the plaintiff must respond with some evidence of unsound mind to defeat summary judgment. The Court's holding to the contrary not only departs from the legal presumption of sound mind, it diverges from our treatment of similar tolling provisions that do not affect the accrual date. Because requiring a defendant to establish that a plaintiff was of sound mind during the limitations period to obtain a traditional summary judgment does not comport with the presumption of sound mind, the unsound-mind tolling statute, and our precedent, I respectfully dissent.
I
Petitioner Rodney Draughon alleges that he inherited property in Kaufman County through intestate succession. In 2006, Draughon conveyed this property to his aunt, Respondent Joycie Johnson, for ten dollars "and other good and valuable consideration." Draughon alleges that the deed is unenforceable because he "did not have the mental capacity to legally sign the warranty deed."
Because eleven years had passed between the date of the deed (September 20, 2006) and the date that Draughon filed this suit (April 26, 2018), Johnson moved for summary judgment, citing the applicable statute of limitations. She attached the deed as evidence in support of her motion. After a hearing, the trial court struck Draughon's responsive evidence as conclusory and granted summary judgment.
Agreeing that Draughon's summary-judgment evidence did not pass muster, the court of appeals affirmed. It held that Draughon did not meet his burden to produce some evidence of unsound mind to create a fact issue on limitations. In placing the burden on the plaintiff to create a fact issue about mental capacity once the defendant produces evidence establishing that limitations has run, the court's holding was in accord with the majority of the other courts of appeals.
––– S.W.3d ––––, 2020 WL 364144 (Tex. App.—Dallas 2020).
Compare Doe v. Catholic Diocese of El Paso , 362 S.W.3d 707, 723 (Tex. App.—El Paso 2011, no pet.) ("To prevent summary judgment, the non-movant needs to produce specific evidence that would enable the court to conclude that he did not have the mental capacity to pursue litigation for a definite period of time, or produce a fact-based expert opinion to that effect."), and Dolenz v. Boundy , 197 S.W.3d 416, 420 (Tex. App.—Dallas 2006, pet. denied) (holding that plaintiff failed to raise a fact issue about tolling because unsound-mind tolling does not include physical impairments), and Chavez v. Davila , 143 S.W.3d 151, 156 (Tex. App.—San Antonio 2004, pet. denied) ("[Plaintiff] had the burden to show the statute of limitations was tolled because she was of unsound mind, and she failed to meet that burden."), and Grace v. Colorito , 4 S.W.3d 765, 769 (Tex. App.—Austin 1999, pet. denied) ("To prevent a summary judgment on an unsound-mind theory, the non-movant needs to produce specific evidence that would enable the court to conclude that she did not have the mental capacity to pursue litigation for a definite period of time, or produce a fact-based expert opinion to that effect."), and Casu v. CBI Na–Con, Inc. , 881 S.W.2d 32, 34–35 (Tex. App.—Houston [14th Dist.] 1994, no writ) (reversing summary judgment because plaintiff raised the issue of mental incompetency through affidavits and evidence), with Rollins v. Pressler , 623 S.W.3d 918 (Tex. App.—Houston [1st Dist.] February 25, 2021, pet. filed) (purporting to follow Erikson v. Renda , 590 S.W.3d 557, 563 (Tex. 2019), in concluding that the defendant must conclusively negate unsound-mind tolling and claiming that other opinions to the contrary "are primarily based on a misreading of other cases"), and Dodson v. Ford , No. 02-12-00168-CV, 2013 WL 5433915, at *4 (Tex. App.—Fort Worth Sept. 26, 2013, no pet.) ("[Defendant] therefore had to make a prima facie showing that [the unsound-mind tolling] provision did not apply to toll limitations before the burden would shift to [the plaintiff] to raise a question of fact on the issue." (footnote omitted)).
II
In disregarding the legal presumption of sound mind and the holdings of most of the courts of appeals, the Court heavily relies on our discovery-rule jurisprudence. Its reliance is misplaced. A defendant must negate the discovery rule to obtain a traditional summary judgment because the discovery rule delays or defers the accrual date, and the accrual date of a cause of action is an element of any limitations defense. The same is not true for tolling defenses that do not affect the accrual date, like the unsound-mind defense. Such defenses do not change the date that a cause of action accrues; thus, for these tolling defenses, we require plaintiffs to produce evidence of tolling to defeat competent summary-judgment evidence that limitations has run.
"The discovery rule delays accrual until the plaintiff ‘knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury.’ " Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 834 (Tex. 2018) (per curiam) (quoting S.V. v. R.V. , 933 S.W.2d 1, 4 (Tex. 1996) ).
A
Some version of unsound-mind tolling has existed since the Republic. It corresponds to the presumption embedded in our law that persons have sufficient mental capacity to agree to contracts and other legal obligations. A plaintiff must overcome the presumption of sound mind with some evidence to submit unsound-mind tolling to the jury:
An Act of Limitations , 5th Cong., R.S., sec. 11 (Feb. 5, 1841), 1841 Repub. Tex. Laws 163, 166, reprinted in 2 H.P.N. Gammel , The Laws of Texas 1822–1897, at 627, 630 (Austin, Gammel Book Co. 1898) ("[N]o law of limitations ... shall run against infants, married women, persons imprisoned or persons of unsound mind, during the existence of their respective disabilities[.]"); Tex. Rev. Civ. Stat. Ann. art. 3201 (1879) ("If a person entitled to commence suit for the recovery of real property ... be, at the time such title shall first descend ... [o]f unsound mind ... the time during which such disability shall continue shall not be deemed any portion of the time limited for the commencement of such suit....").
The law presumes every party to a legal contract to have had sufficient mental capacity to understand his legal rights with reference to the transaction involved, and, to overcome this legal presumption, the burden of proof rests upon the party asserting to the contrary to establish it by a preponderance of the evidence, and, if there shall not be sufficient legal evidence introduced to present an issue of fact on this subject, there is no duty resting upon the trial court to submit an issue to the jury for its finding.
Swink v. City of Dallas , 36 S.W.2d 222, 224 (Tex. Comm'n App. 1931, holding approved) (emphasis added).
In its modern form, unsound-mind tolling resides in section 16.001 of the Civil Practice and Remedies Code. Under that section, a person "of unsound mind" has a legal disability. If under that disability at the time the cause of action accrues, then limitations is tolled for the duration of the disability:
Tex. Civ. Prac. & Rem. Code § 16.001(a)(2). The other legal disability recognized is that of a person under age eighteen. Id. § 16.001(a)(1).
If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.
Id. § 16.001(b).
The relevant period, set by the statute, begins when the cause of action accrues. Under the statute, the date the cause of action accrues stands firm, as does the limitations period. A plaintiff with a legal disability is excused from complying with a limitations statute for so long as the disability exists.
Id.
B
The traditional motion for summary judgment remains an integral part of summary-judgment practice. The standard for granting traditional motions, found in Texas Rule of Civil Procedure 166a(c), requires a trial court to render summary judgment "forthwith" if the evidence shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law:
The judgment sought shall be rendered forthwith if (i) the deposition transcripts,
interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.
Because the standard examines the evidence presented, a party may not rely on its pleadings to defeat a traditional motion for summary judgment based on limitations if the evidence otherwise supports it.
Am. Petrofina, Inc. v. Allen , 887 S.W.2d 829, 830 (Tex. 1994) (holding that plaintiff's assertion of fraudulent concealment did not raise a fact issue because "[a] mere pleading or a response to the summary judgment motion does not satisfy this burden of coming forward with sufficient evidence to prevent summary judgment"); City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979) ("Pleadings do not constitute summary judgment proof.").
Under Rule 166a(c), a defendant moving for traditional summary judgment must establish each element of an affirmative defense with competent evidence. Once the defendant has done so, however, the plaintiff must counter with some evidence to raise a fact issue to avoid summary judgment.
KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015).
Am. Petrofina , 887 S.W.2d at 830.
Johnson sought a traditional summary judgment based on a four-year statute of limitations. "A defendant moving for summary judgment on a statute of limitations affirmative defense must prove conclusively that defense's elements." The elements of a limitations defense are simply (i) the applicable limitations period and (ii) the accrual date.
Shah v. Moss , 67 S.W.3d 836, 842 (Tex. 2001).
See Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 833–34 (Tex. 2018) (per curiam).
The parties in this case do not dispute that a four-year limitations period applies. They also do not dispute that Draughon has the burden to establish unsound-mind tolling. We thus examine whether Draughon's unsound-mind pleading affects the accrual date, which is the other element of Johnson's limitations defense. It does not.
See Ford v. Exxon Mobil Chem. Corp. , 235 S.W.3d 615, 618 (Tex. 2007) (per curiam) (applying limitations to fraudulent deed claim); cf. Slaughter v. Qualls , 139 Tex. 340, 162 S.W.2d 671, 674 (1942) ("[W]here a deed is merely voidable and the equity powers of the court must first be invoked to cancel the deed before a suit can be maintained at law to recover the land, then the four-year statute ... controls."); Williams v. Sapieha , 94 Tex. 430, 61 S.W. 115, 116 (1901) ("The deed of an insane person is not void, but, like that of an infant, is voidable at the election of the party.").
The Legislature considered the accrual date to be fixed for unsound-mind tolling: the period begins "when the cause of action accrues." "Accrue" means the date a claim comes into enforceable existence; it does not depend on any legal disability. Because unsound-mind tolling does not disturb the accrual date, it is not the defendant's burden to refute it to establish meritorious grounds for traditional summary judgment unless the plaintiff produces some evidence in support of it. Absent contrary evidence, a traditional summary-judgment motion supported by competent evidence establishing the date of accrual and the applicable limitations period establishes that the defendant is entitled to judgment.
See Accrue , Black's Law Dictionary (11th ed. 2019) ("To come into existence as an enforceable claim or right; to arise[.]"). The accrual date may be set by statute or by the court as a question of law. Town of Dish v. Atmos Energy Corp. , 519 S.W.3d 605, 609 (Tex. 2017).
Am. Petrofina , 887 S.W.2d at 830.
Absent contrary evidence is key. A plaintiff may respond to a traditional motion by producing evidence of unsound mind to extend or permanently toll a limitations period that has run. The mere assertion of unsound mind, however, does not raise a fact issue that overcomes the evidence otherwise establishing that limitations has run. A party's own pleadings or assertions are not any proof that defeats a traditional motion for summary judgment supported by competent evidence.
City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979).
The mere assertion of mental incapacity also does nothing to overcome the legal presumption of sound mind to enter contracts. We required summary-judgment type evidence of unsound mind to defeat a limitations defense even before we adopted our modern rules of civil procedure. Absent evidence to the contrary, the law "presumes every party to a legal contract to have had sufficient mental capacity to understand his legal rights with reference to the transaction involved."
Swink v. City of Dallas , 36 S.W.2d 222, 224 (Tex. Comm'n App. 1931, holding approved) (requiring plaintiff to present evidence of unsound mind to refute limitations defense before presenting question to jury).
Id.
Further, the party asserting a legal disability based on unsound mind is the party with the access to the information to prove it. For limitations purposes, we have held that the party with "greater access to the facts necessary to establish that it falls within the rule" should produce that supporting evidence. The purpose of summary judgment is to consider the legal questions presented when no genuine issue of material fact exists. With proof that limitations has run and no proof suggesting that limitations was otherwise tolled, a trial court should grant summary judgment under Rule 166a(c) "forthwith."
Contrary to the Court's assertion, the burden is not premised solely on the best access to the evidence. Ante at 96. Instead, we observe that, though a defendant bears the burden of establishing the accrual date, the plaintiff must produce some evidence that the period was tolled once limitations has run. A plaintiff's superior access to evidence of his mental state bolsters the allocation of the burden of production that the tolling statute evinces.
Woods v. William M. Mercer, Inc. , 769 S.W.2d 515, 518 (Tex. 1988) ; In re United Servs. Auto. Ass'n , 307 S.W.3d 299, 312 (Tex. 2010) (orig. proceeding) ("As it is the nonmovant who has this information, he should bear the burden of producing it.").
Samson Expl., LLC v. T.S. Reed Props., Inc. , 521 S.W.3d 766, 783 n.56 (Tex. 2017) ("The function of the summary judgment is not to deprive a litigant of his right to trial by jury, but to eliminate patently unmeritorious claims and untenable defenses." (quoting Clear Creek Basin Auth. , 589 S.W.2d at 678 n.5 )).
Rather than allowing that judgment forthwith, the Court tells defendants to simply use a no-evidence summary-judgment motion to counter an assertion of unsound mind. This flippancy confuses "no-evidence" motions for "no-cost" motions. Rather than summarily disposing of unmeritorious and stale claims based on the evidence presented when no evidence to the contrary exists, as Rule 166a(c) expressly permits, the defendant must endure the high costs of discovery into the merits, without any refutation of the evidence that it is time-barred.
Ante at 96–97.
See In re Alford Chevrolet-Geo , 997 S.W.2d 173, 180 (Tex. 1999) (orig. proceeding) (identifying discovery as "a weapon capable of imposing large and unjustifiable costs on one's adversary" and repeating that discovery "is often the most significant cost of litigation" (quoting Frank H. Easterbrook, Discovery as Abuse , 69 B. U. L. Rev. 635, 636 (1989) )).
III
A
The Court arrives at its conclusion by lumping together anything "affecting the limitations calculation" and making it part of the defendant's summary-judgment burden. But it must acknowledge that we require plaintiffs to come forward with evidence to support other tolling doctrines, including fraudulent concealment, jurisdictional tolling, and diligence in service of process. The Court places these doctrines in a second category it calls reasons to "avoid" limitations that are "independent of the defendant's conclusive showing that the limitations period expired."
Ante at 89.
See KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp. , 988 S.W.2d 746, 748, 750 (Tex. 1999) (placing the burden on the plaintiff to adduce evidence supporting fraudulent concealment); United Servs. , 307 S.W.3d at 312 (placing the burden on the plaintiff to show that he did not intentionally disregard proper jurisdiction); Ashley v. Hawkins , 293 S.W.3d 175, 179 (Tex. 2009) (placing the burden on the plaintiff to show diligence in service of process).
Ante at 93–94.
The Court's attempted division does not bear up under scrutiny. The distinction between "affecting" limitations and "avoiding" limitations unravels under an examination of our precedent.
For example, the Court places the doctrine of fraudulent concealment in the category of defenses that "avoid" limitations. It must, because we squarely have held that the plaintiff must present some evidence to support a pleading of fraudulent concealment to avoid summary judgment. Fraudulent concealment does not eschew limitations, however; as with unsound mind, it tolls limitations for reasons unrelated to the accrual date. For fraudulent concealment, the cause of action accrues but limitations is tolled due to the defendant's purposeful concealment.
See KPMG Peat Marwick , 988 S.W.2d at 749 ("[A] party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary judgment motion and to come forward with summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense." (footnote omitted)).
BP Am. Prod. Co. v. Marshall , 342 S.W.3d 59, 67 (Tex. 2011) ("Fraudulent concealment only tolls the running of limitations until the fraud is discovered or could have been discovered with reasonable diligence.").
Unlike fraudulent concealment and other tolling doctrines, a defendant must conclusively negate the discovery rule to obtain summary judgment. This is not because the discovery rule fails to "avoid" limitations, however. Like fraudulent concealment, "the discovery rule is a plea in confession and avoidance." The true difference is that one affects the accrual date of the cause of action (the discovery rule) and the other does not (fraudulent concealment).
Woods v. William M. Mercer, Inc. , 769 S.W.2d 515, 517 (Tex. 1988).
The Court's categorization provides no guide for determining whether a particular doctrine "affects" or "avoids" limitations. Does Gentry tolling "affect" limitations because it tolls limitations when a corporate alter ego is sued, or does it "avoid" limitations because its purpose is to defeat fraud? When a plaintiff misidentifies a defendant, is limitations "affected" or "avoided"? The Court answers that both doctrines "avoid" limitations because they are "equitable in nature." But the discovery rule, too, is "equitable in nature." When we first gave name to the rule, we observed that such exceptions to limitations were necessary "in order to do justice." Nonetheless, the Court puts the discovery rule in its first category of defenses that "affect" limitations.
See Matthews Constr. Co. v. Rosen , 796 S.W.2d 692, 694 (Tex. 1990) (discussing Gentry v. Credit Plan Corp. , 528 S.W.2d 571 (Tex. 1975) ).
See Flour Bluff Indep. Sch. Dist. v. Bass , 133 S.W.3d 272, 274 (Tex. 2004) (per curiam) ("The statute of limitations will be tolled in mis-identification cases if ... the correct entity had notice of the suit and was not misled or disadvantaged by the mistake.").
Ante at 92.
Gaddis v. Smith , 417 S.W.2d 577, 580 (Tex. 1967).
The remaining justification for shifting the burden of production that the Court offers is that it "makes practical sense to treat unsoundness of mind like the discovery rule" because "if you are of unsound mind, it will be more difficult for you to discover your injury." Unsound-mind tolling is not a test, however, of the ability to discover an injury but instead excuses compliance with any limitations period for so long as the plaintiff lacks sufficient mental capacity to access the courts. It does not excuse the plaintiff from showing some entitlement to that access when the plaintiff arrives in court after limitations has run.
Ante at 95.
Ruiz v. Conoco, Inc. , 868 S.W.2d 752, 755–56 (Tex. 1993).
B
The better understanding of our jurisprudence centers around the accrual date. Once a defendant establishes the accrual date and that limitations has run, a plaintiff must produce some evidence of a tolling doctrine to avoid limitations. Such a rule is consistent with our precedent, not a departure from it.
Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 833–34 (Tex. 2018) (per curiam) ("A defendant moving for summary judgment on the affirmative defense of limitations bears the burden of conclusively establishing ... when the cause of action accrued.").
The discovery rule works by "delaying" or "deferring" the accrual date. It is a "test to be applied in determining when a plaintiff's cause of action accrued." For that reason, we distinguish the discovery rule from other kinds of tolling. As we have long recognized, "[d]eferring accrual and thus delaying the commencement of the limitations period is distinct from suspending or tolling the running of limitations once the period has begun." Thus, "[i]n cases in which the plaintiff pleads the discovery rule, the defendant moving for summary judgment on limitations bears the additional burden of negating the rule." In other words, the burden of proving the accrual date remains with the defendant even when the plaintiff asserts the discovery rule in response to a motion for summary judgment.
E.g., id. at 834 ("The discovery rule delays accrual until the plaintiff ‘knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury.’ " (quoting S.V. v. R.V. , 933 S.W.2d 1, 4 (Tex. 1996) )); Wagner & Brown, Ltd. v. Horwood , 58 S.W.3d 732, 734 (Tex. 2001) ("The discovery rule exception operates to defer accrual of a cause of action until the plaintiff knows or, by exercising reasonable diligence, should know of the facts giving rise to the claim.").
Weaver v. Witt , 561 S.W.2d 792, 794 (Tex. 1977).
S.V. , 933 S.W.2d at 4.
Schlumberger , 544 S.W.3d at 834.
Disregarding this distinction in our jurisprudence, the Court likens unsound-mind tolling to Hughes tolling. For Hughes tolling, however, the accrual date is not determined until the plaintiff suffers a legal injury at the conclusion of the underlying lawsuit in which an attorney is alleged to have committed malpractice. Erikson v. Renda holds no differently. In that case, we held Hughes tolling completely inapplicable because the legal injury occurred, at the latest, as of the date the plaintiff discovered or should have discovered his injury. The Court claims that Hughes tolling does not defer accrual because a malpractice claim accrues "when faulty professional advice is taken" or discovered. But it is fundamental that an action cannot accrue unless there is legal injury. A malpractice injury does not come into existence until the underlying suit is resolved; as we observed in Hughes , "the viability of the [malpractice] action depends on the outcome of the [underlying action]." Thus, Hughes tolling recognizes the deferral of accrual of a malpractice cause of action.
Hughes v. Mahaney & Higgins , 821 S.W.2d 154, 157 (Tex. 1991).
590 S.W.3d 557, 570 (Tex. 2019).
Ante at 90 n.7 (quoting id. at 563 ).
In contrast, fraudulent concealment does not delay the accrual of the cause of action. It instead tolls the limitations period. Because of its nature as an estoppel doctrine, we place the burden on the plaintiff to raise an issue of fact at summary judgment once the defendant establishes the accrual date and the limitations period.
S.V. v. R.V. , 933 S.W.2d 1, 4 (Tex. 1996) (collecting cases); Comput. Assocs. Int'l., Inc. v. Altai, Inc. , 918 S.W.2d 453, 456 (Tex. 1996). Though we have described fraudulent concealment as "deferring" limitations, see S.V. , 933 S.W.2d at 4–6, in recent cases we have more precisely described the doctrine as tolling or extending limitations, e.g., Valdez v. Hollenbeck , 465 S.W.3d 217, 229–30 (Tex. 2015) ; BP Am. Prod. Co. v. Marshall , 342 S.W.3d 59, 67 (Tex. 2011).
Kerlin v. Sauceda , 263 S.W.3d 920, 925–26 (Tex. 2008).
Comput. Assocs. , 918 S.W.2d at 456 ("[D]eferral in the context of fraud or concealment resembles equitable estoppel."); Am. Petrofina, Inc. v. Allen , 887 S.W.2d 829, 830 (Tex. 1994) ("This Court has consistently held that a party asserting fraudulent concealment has the burden ‘to come forward with proof raising an issue of fact with respect to [that claim].’ " (quoting Nichols v. Smith , 507 S.W.2d 518, 521 (Tex. 1974) )).
For other tolling doctrines that do not affect the date of accrual, we similarly require the plaintiff to produce evidence to defeat a traditional motion for summary judgment. A plaintiff, for example, must produce evidence of diligent service efforts once a defendant shows that service occurred after limitations has run. "[I]f the plaintiff's explanation for the delay raises a material fact issue concerning the diligence of service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of law, the explanation is insufficient."
Proulx v. Wells , 235 S.W.3d 213, 215–16 (Tex. 2007) (per curiam).
Id. at 216 ; see also Ashley v. Hawkins , 293 S.W.3d 175, 179 (Tex. 2009) ("When a defendant has affirmatively pleaded the defense of limitations, and shown that service was not timely, the burden shifts to the plaintiff to prove diligence."); Murray v. San Jacinto Agency, Inc. , 800 S.W.2d 826, 830 (Tex. 1990) (same).
We generally spoke about the defendant's summary-judgment burden in Zale Corp. v. Rosenbaum without describing the burden of production: "Where the non-movant interposes a suspension statute ... or pleads diligence in requesting issuance of citation, the limitation defense is not conclusively established until the movant meets his burden of negating the applicability of these issues." We carried forward Zale ’s general statement in Erikson and other cases in which the burden of production was not an issue. And it is generally a true statement: to obtain summary judgment, a defendant must conclusively negate any tolling doctrine, once the plaintiff has produced some evidence it applies.
520 S.W.2d 889, 891 (Tex. 1975) (per curiam). In Zale , however, we recognized the "distinction between pleas by the non-movant which challenge the existence of limitations ... and those which do not challenge the limitations defense, but are affirmative defenses in the nature of confession and avoidance. In the latter instance, the non-movant does have the burden of raising a fact issue with respect to his affirmative defense." Id.
Erikson v. Renda , 590 S.W.3d 557, 563 (Tex. 2019) ; Diaz v. Westphal , 941 S.W.2d 96, 98 (Tex. 1997) ; Jennings v. Burgess , 917 S.W.2d 790, 793 (Tex. 1996).
In cases in which the burden of production was directly at issue, however, we reconciled Zale to other cases with an express statement of this caveat, clarifying that the defendant's burden to negate a tolling doctrine arises only when the plaintiff adduces some evidence in support of it. In Proulx v. Wells , we confirmed this burden, recognizing that the plaintiff in Zale had produced evidence raising a fact issue. "Because the plaintiff [in Zale ] both pled and presented evidence of due diligence in effecting service, our holding that the defendant then bore the burden to disprove diligence as a matter of law [did] not conflict" with the plaintiff's burden to raise a fact issue. We reaffirmed this principle in Ashley v. Hawkins , in which we reiterated that it is the plaintiff's burden to present evidence creating a fact issue when relying on limitations tolling based on diligent service.
Id. In Oram v. General American Oil Co. , 513 S.W.2d 533, 533–34 (Tex. 1974), we also suggested that the plaintiff was not "required to raise a fact issue" after "conten[ding]" that a tolling provision applied. As in Zale , however, the plaintiff in Oram supplied competent evidence that the tolling provision applied. We have never reversed summary judgment in a case in which the plaintiff merely pleaded the applicability of a tolling provision without supporting evidence.
293 S.W.3d at 179–81 (affirming summary judgment based on limitations because plaintiff failed to present evidence of diligence in service of process).
We likewise concluded that the plaintiff has the burden of creating a fact issue about the applicability of the tolling provision found in section 16.064 of the Civil Practice and Remedies Code for suits filed in a court that lacks jurisdiction. There we held, "As it is the nonmovant who has this information, he should bear the burden of producing it." Each of these tolling provisions, like the unsound-mind tolling provision, leaves the accrual date untouched.
In re United Servs. Auto. Ass'n , 307 S.W.3d 299, 312–13 (Tex. 2010) (orig. proceeding) ; see also Tex. Civ. Prac. & Rem. Code § 16.064(a).
United Servs. , 307 S.W.3d at 312. As we did in Proulx , we clarified the difference in United Services between producing evidence to raise a fact issue (which defeats a motion for summary judgment) and not producing (which does not).
Requiring Draughon to come forward with some evidence to support his assertion of unsound mind thus does not require us to overrule general statements about the burden of proof on summary judgement in Erikson, Diaz , or Jennings , which arise from Zale , and do not address the question of the burden of production. We made the same general statement in Zale about the burden of proof for tolling provisions writ large; as with Zale , our actual holdings in these cases did not depend on, or even discuss, the allocation of the summary-judgment burden to produce evidence in response to evidence showing that limitations had run. Before today, the Court must acknowledge, most tolling provisions do not excuse the plaintiff from presenting evidence in support of them to avoid summary judgment. To the contrary, save the discovery rule and Hughes tolling (which, like the discovery rule, implicates the date of the legal injury), we have required such a showing.
No need to overrule anything, because none of the cases the Court cites support its dramatic expansion of the defendant's burden of proof at summary judgment from merely establishing the accrual date to negating a tolling doctrine in the absence of any evidence of it. Erikson refused to apply any tolling doctrine at all. Diaz and Jennings addressed whether the open courts provision of the Texas Constitution nullified a statutory revocation of the discovery rule. Nothing in these cases dictates the burden of production in response to a traditional motion for summary judgment.
Erikson v. Renda , 590 S.W.3d 557, 563, 570 (Tex. 2019) (stating, "The defendant must also conclusively negate application of the discovery rule and any tolling doctrines pleaded as an exception to limitations" but holding Hughes tolling inapplicable to malpractice "only tangentially related to the prosecution or defense of a claim").
Diaz v. Westphal , 941 S.W.2d 96, 98, 100–01 (Tex. 1997) (stating that "the defendant must conclusively negate any relevant tolling doctrines the plaintiff asserted in the trial court" but holding that the open courts provision did not preserve the discovery rule when it was supplanted by statute); Jennings v. Burgess , 917 S.W.2d 790, 793–94 (Tex. 1996) (stating that "the movant must conclusively negate the tolling provision's application" but holding that the open courts provision did not apply because the plaintiff's injury was not undiscoverable).
Johnson attached the signed deed from 2006 as summary-judgment evidence. Johnson thus conclusively demonstrated that limitations had run when Draughon filed this suit in 2018. The burden then shifted to Draughon to raise evidence that he was of unsound mind until four years before he filed suit. Because Draughon presented no evidence creating a fact issue about unsound mind during the limitations period, Johnson was entitled to summary judgment.
* * *
The Court holds that Johnson must prove that her litigation opponent was of sound mind between the time of the alleged wrong and the filing of this lawsuit to prove her limitations defense, in the absence of evidence to the contrary. Its holding is inconsistent with our precedent requiring the plaintiff to come forward with evidence showing that limitations is tolled in response to a traditional motion for summary judgment that establishes that limitations has run. We should uphold the legal presumption of sound mind in the absence of any proof to the contrary. Because we do not, I respectfully dissent.