IN THE SUPREME COURT OF TEXAS ══════════ No. 20-0158 ══════════
RODNEY DRAUGHON, PETITIONER,
V.
JOYCIE JOHNSON, RESPONDENT
══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS ══════════════════════════════════════════
Argued March 24, 2021
JUSTICE BUSBY delivered the opinion of the Court, in which JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BOYD, and JUSTICE DEVINE joined.
JUSTICE BLAND filed a dissenting opinion, in which CHIEF JUSTICE HECHT, JUSTICE BLACKLOCK, and JUSTICE HUDDLE 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
1 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.
2 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.1 __
S.W.3d __ (Tex. App.—Dallas 2020). The court of appeals affirmed. Id. at __. The court held
1 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. 3 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 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, __ S.W.3d __, 2021 WL 726995, at *4–8 (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.
4 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 (1986).
5 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 1997.2 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
2 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). 6 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).
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,
7 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.”3 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”).
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.
3 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. 8 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 . . . .”).4 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).
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 518.5 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.
But “on motion for summary judgment, the burden is on the defendant to negate the
discovery rule.” Id. at 518 n.2.6 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
4 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.”). 5 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). 6 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). 9 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.
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);7 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.8
7 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. 8 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.”). 10 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,
[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).9 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.
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
9 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. 11 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].
Id.10
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
10 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.”). 12 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 94.11 One such matter set out in Rule 94 is fraud; we have
11 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. 13 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).12 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).13
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 534.14
12 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. 13 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). 14 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, 964 S.W.2d at 270–71. Thus, as
14 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).15 “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).
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.
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. 15 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. 15 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.16 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).
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.17 Because the plaintiff had presented a fact issue
16 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). 17 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. 16 regarding her incapacity, we held that the trial court erred in directing a verdict for the defendant.
Id. at 226.
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 900.18
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.19
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,
18 We do not “[i]gnor[e] the legal presumption of sound mind,” as the dissent contends. Post at __. Rather, we explain why our precedent dictates that the presumption is inapplicable in deciding a traditional motion for summary judgment. 19 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.”) 17 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 __. 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.
18 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 __. 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
19 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.20
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.
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.
20 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.). 20 _____________________ J. Brett Busby Justice
Opinion delivered: June 11, 2021