Rodney Draughon v. Joycie Johnson

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 ══════════════════════════════════════════════════ 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. 1 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. 2 The text of the tolling statute and a trenchant review of our precedent compel a different conclusion.

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. 3 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. 4 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. 5 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.

A Some version of unsound-mind tolling has existed since the Republic. 6 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: 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. 7 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. 8 If under that disability at the time the cause of action accrues, then limitations is tolled for the duration of the disability: 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. 9 The relevant period, set by the statute, begins when the cause of action accrues. 10 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.

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. 11

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. 12 Under Rule 166a(c), a defendant moving for traditional summary judgment must establish each element of an affirmative defense with competent evidence. 13 Once the defendant has done so, however, the plaintiff must counter with some evidence to raise a fact issue to avoid summary judgment. 14 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.” 15 The elements of a limitations defense are simply (i) the applicable limitations period and (ii) the accrual date. 16 The parties in this case do not dispute that a four-year limitations period applies. 17 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.

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. 18 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. 19 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. 20

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. 21 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.” 22 Further, the party asserting a legal disability based on unsound mind is the party with the access to the information to prove it. 23 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. 24 The purpose of summary judgment is to consider the legal questions presented when no genuine issue of material fact exists. 25 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.”

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. 26 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. 27 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. 28 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. 29 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.” 30 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. 31 Fraudulent concealment does not eschew limitations, however; as with unsound mind, it tolls limitations for reasons unrelated to the accrual date. 32 For fraudulent concealment, the cause of action accrues but limitations is tolled due to the defendant’s purposeful concealment.

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.” 33 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).

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? 34 When a plaintiff misidentifies a defendant, is limitations “affected” or “avoided”? 35 The Court answers that both doctrines “avoid” limitations because they are “equitable in nature.” 36 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.” 37 Nonetheless, the Court puts the discovery rule in its first category of defenses that “affect” limitations.

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.” 38 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. 39 It does not excuse the plaintiff from showing some entitlement to that access when the plaintiff arrives in court after limitations has run.

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. 40 The discovery rule works by “delaying” or “deferring” the accrual date. 41 It is a “test to be applied in determining when a plaintiff’s cause of action accrued.” 42 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.” 43 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.” 44 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.

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. 45 Erikson v. Renda holds no differently. 46 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. 47 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].” 48 Thus, Hughes tolling recognizes the deferral of accrual of a malpractice cause of action.

In contrast, fraudulent concealment does not delay the accrual of the cause of action. 49 It instead tolls the limitations period. 50 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. 51 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. 52 “[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.” 53 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.” 54 We carried forward Zale’s general statement in Erikson and other cases in which the burden of production was not an issue. 55 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.

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. 56 “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. 57 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. 58 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. 59 There we held, “As it is the nonmovant who has this information, he should bear the burden of producing it.” 60 Each of these tolling provisions, like the unsound-mind tolling provision, leaves the accrual date untouched.

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. 61 Diaz and Jennings addressed whether the open courts provision of the Texas Constitution nullified a statutory revocation of the discovery rule. 62 Nothing in these cases dictates the burden of production in response to a traditional motion for summary judgment.

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.

______________________________ Jane N. Bland Justice OPINION DELIVERED: June 11, 2021