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.

1
Comput. Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).
2
Ante at 17.
 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

3
__ S.W.3d __ (Tex. App.—Dallas 2020).
2
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

4
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, __ S.W.3d __ (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)).
5
“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)).

3
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

6
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 . . . .”).
7
Swink v. City of Dallas, 36 S.W.2d 222, 224 (Tex. Comm’n App. 1931, holding approved) (emphasis
added).
TEX. CIV. PRAC. & REM. CODE § 16.001(a)(2). The other legal disability recognized is that of a person under
8

age eighteen. Id. § 16.001(a)(1).
4
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

9
Id. § 16.001(b).
10
Id.
11
TEX. R. CIV. P. 166a(c).
5
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

12
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.”).
13
KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).
14
Am. Petrofina, 887 S.W.2d at 830.
15
Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).
16
See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833–34 (Tex. 2018) (per curiam).
17
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, 162 S.W.2d 671, 674 (Tex. 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, 61 S.W. 115, 116 (Tex. 1901)
(“The deed of an insane person is not void, but, like that of an infant, is voidable at the election of the party.”).
6
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

18
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).
19
Am. Petrofina, 887 S.W.2d at 830.
20
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
7
 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.”

21
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).
22
Id.
23
Contrary to the Court’s assertion, the burden is not premised solely on the best access to the evidence. Ante
at 19. 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.
24
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.”).
25
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)).
8
 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”

26
Ante at 20.
27
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))).
28
Ante at 8.
29
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).
9
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).

30
Ante at 15.
31
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)).
32
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.”).
33
Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988).
10
 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

34
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)).
35
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.”).
36
Ante at 14.
37
Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex. 1967).
38
Ante at 18.
11
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

39
Ruiz v. Conoco, Inc., 868 S.W.2d 752, 755–56 (Tex. 1993).
40
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.”).
41
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.”).
42
Weaver v. Witt, 561 S.W.2d 792, 794 (Tex. 1977).
43
S.V., 933 S.W.2d at 4.
44
Schlumberger, 544 S.W.3d at 834.
12
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.

45
Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991).
46
590 S.W.3d 557, 570 (Tex. 2019).
47
Ante at 10 n.7 (quoting id. at 563).
48
821 S.W.2d at 157.
13
 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

49
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).
50
Kerlin v. Sauceda, 263 S.W.3d 920, 925–26 (Tex. 2008).
51
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))).
52
Proulx v. Wells, 235 S.W.3d 213, 215–16 (Tex. 2007) (per curiam).
53
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).
14
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

54
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.
55
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).
56
235 S.W.3d at 215.
57
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.
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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

58
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).
59
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).
60
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).
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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,

61
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”).
62
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).
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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

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