Affirmed and Majority and Dissenting Opinions filed August 4, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00343-CV
VINCENT LILLY, Appellant
V.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE AND BILL PIERCE,
Appellees
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 74682I
OPINION
Appellant Vincent Lilly appeals from the trial court’s order granting
summary judgment in favor of appellees the Texas Department of Criminal Justice
(TDCJ) and Bill Pierce based on limitations. We affirm.
BACKGROUND
According to his petition, Lilly is a member of the House of Yahweh, a
religion that prohibits its members from eating pork and using cooking or eating
utensils that have been used to prepare and serve pork. The TDCJ imprisoned
Lilly from February 2011 until June 2013 at its Stringfellow Unit, where it
operates a kosher kitchen in full compliance with Lilly’s dietary restrictions. On
March 16, 2011, Lilly requested that his name be added to the Stringfellow Unit’s
kosher kitchen list. Rabbi Goldstein, who maintained the list, denied Lilly’s
request, stating: “Per TDCJ policy, [t]he kosher kitchen is restricted to the Jewish
community only.”
Lilly filed a Step 1 offender grievance form on March 24, 2011, complaining
that the TDCJ’s failure to provide him a kosher diet violated his constitutional
rights. Lilly requested that, to resolve his complaint, the TDCJ add his name to the
kosher kitchen list. The warden responded to Lilly’s grievance on April 27, 2011,
stating: “Your grievance has been reviewed. In order to address your concerns
appropriately, the unit Chaplain has submitted HQ150 form to the Religious
Practice Committee in Huntsville. Wait for their disposition.”
Lilly filed a Step 2 offender grievance form on June 8, 2011.1 Lilly asserted
on his form that he was dissatisfied with the TDCJ’s resolution of his Step 1
offender grievance form because more than 40 days had elapsed since the warden’s
response and the Religious Practice Committee had not returned its decision.
Pierce, who was the director of the TDCJ’s Chaplaincy Department, responded to
Lilly’s Step 2 offender grievance form on June 24, 2011, stating: “Your complaint
has been received and investigated. Your grievance was answered appropriately in
Step 1. The Religious Practice Committee (RPC) has your request and it is
scheduled for review the next time they meet on June 24, 2011. The RPC meets
every 90 days. No further action is warranted at this time.”
Lilly filed additional grievances over the next several months by submitting
1
The Step 2 offender grievance form lists the date received as June 8, 2011. Lilly alleges
that he filed his grievance form on June 7, 2011. The exact date is not dispositive of this appeal.
We state the date listed on the grievance form as the date Lilly filed his grievance and resolve
similar discrepancies in the same manner by stating the dates listed on the grievance forms.
2
Step 1 and Step 2 offender grievance forms. On July 25, 2011, Lilly filed a
grievance complaining that the TDCJ did not provide him with adequately
sanitized eating utensils for his kosher diet; he requested that he be allowed to
bring his commissary-purchased bowl, cup, and spoon to the dining hall. Lilly
filed another grievance on August 25, 2011, complaining that he had observed
kitchen staff serve non-Jewish inmates and officers kosher meals on disposable
trays; Lilly requested that he be provided the TDCJ’s Kosher Kitchen Policy for
review. Lilly filed a fourth grievance on December 5, 2011, complaining that his
dietary requirements had not been met; he requested “[d]isposable eating ware and
cooking ware where no [p]ork has been used, in comports with my religious belief,
like Judaic faith [o]ffenders.”
The TDCJ responded to Lilly’s additional grievances stating in its various
Step 1 and Step 2 replies that Lilly could not bring his personal items to the dining
hall; “utensils, trays (plates) and cups [were] adequately cleaned and sanitized to
remove all contamination of pork or any other food items served in the Offender
Dining Hall;” and “[t]he Administration ha[d] no plans of providing disposable
eating wares for offenders.” The TDCJ did not provide its Kosher Kitchen Policy
to Lilly for review.
Lilly received the Religious Practice Committee’s disposition regarding his
first-filed grievance on February 1, 2012. According to Lilly, the committee
stated: “The [p]ork-free/[m]eat-free meals provided by the Agency meets [sic] the
requirements of the scriptures you presented.”
Lilly wrote Pierce regarding the committee’s interpretation of scriptures
after receiving the committee’s disposition. Lilly questioned why Jewish inmates,
relying on the same scriptures, were provided the kosher diet Lilly requested.
Pierce did not respond to Lilly’s letter.
3
Lilly resumed filing grievances. On July 16, 2012, Lilly complained that the
Stringfellow Unit’s Kosher Kitchen Policy was discriminatory and requested
permission to read the policy. Pierce responded on March 1, 2013: “You present
no new facts for consideration. You may request to read the Kosher Kitchen
[P]olicy through the Open Records Act. No further action is warranted.”
Lilly filed another grievance on March 20, 2013, citing the Texas Religious
Freedom Restoration Act section 110.006(g), and requesting that Pierce provide
the Religious Practice Committee’s rationale “as to why the Scriptures cited does
[sic] not prohibit eating from utensils contaminated by [p]ork.” See Tex. Civ. Prac.
& Rem. Code § 110.006(g) (Vernon 2011). Pierce responded on April 26, 2013:
“The pork-free/meat[-]free meals provided by TDCJ meet the requirements of the
scriptures you have provided.”
Lilly sent an open records request to the Stringfellow Unit’s law library
supervisor on April 1, 2013, to review the Kosher Kitchen Policy. The law library
supervisor denied Lilly’s request. Lilly filed a Step 1 offender grievance form on
April 1, 2013, complaining that the law library supervisor had disregarded Lilly’s
request that he be allowed to review the Kosher Kitchen Policy. The warden
responded to Lilly’s Step 1 offender grievance form on May 10, 2013, stating:
“Your grievance has been reviewed . . . . Offenders are not allowed to have copies
or review the policy requested for. No further action warranted.” Lilly filed a Step
2 offender grievance offense form on May 15, 2013. The warden rescinded his
Step 1 response, and provided the following corrected Step 1 response:
“Regarding your request to review the Kosher [K]itchen Policy. The Policy[,]
Reassignment Procedures to a Jewish Designated Unit[,] is in the Chaplaincy
Manual, policy number 07.02. You may review this policy in the Unit Law
Library.”
The TDCJ transferred Lilly from the Stringfellow Unit to the James Allred
4
Unit in June 2013. At the time of his transfer, Lilly had not received the TDCJ’s
response to his May 15, 2013 Step 2 offender grievance form. Lilly filed a
separate grievance complaining that he had not received the TDCJ’s response. The
TDCJ provided Lilly a copy of its Step 2 response on September 30, 2013. The
TDCJ’s response stated: “Your grievance was investigated and disclosed that
offenders are permitted to review the Kosher Diet [P]olicy in the law library.
Submit an I-60 to the law library. No further action warranted.”
Lilly reviewed the Chaplaincy Manual policy number 07.02 and determined,
according to his petition, that “[t]his policy ha[d] ‘nothing whatsoever’ to do with
the Stringfellow Unit Kosher Kitchen.” Lilly also determined that the TDCJ’s
response to his May 15, 2013 Step 2 offender grievance form was “‘irrelevant’, for
[Lilly] [was] requesting to review the Kosher Kitchen Policy[,] which states the
Stringfellow Unit Kosher Kitchen is restricted to the Jewish community[,] not the
Kosher Diet Policy.”
Lilly filed a lawsuit against the TDCJ and Pierce on October 22, 2013.2
Lilly alleged in his petition that appellees’ actions “substantially burdened his free
exercise of religion to use ‘[p]ork-free’ cooking and eating utensils in the
preparation and serving of his daily meals in comports [sic] with his religious
requirement [sic].” Lilly asserted claims under the Texas Religious Freedom
Restoration Act, the First and Fourteenth Amendments to the United States
Constitution, and Article 1, sections 3a and 6 of the Texas Constitution. See Tex.
Civ. Prac. & Rem. Code § 110.003 (Vernon 2011).3
2
We deem Lilly’s lawsuit to have been filed on October 22, 2013, because, on that date,
Lilly placed his pro se petition, addressed to the trial court clerk, in the prison mail system. See
Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004).
3
Lilly does not discuss his claims under the Texas Constitution in his appellate brief. To
the extent Lilly complains that the trial court erred in dismissing claims under the Texas
Constitution, we reject this contention as being inadequately briefed. See Tex. R. App. P. 38.1(i)
5
Appellees answered and moved for traditional summary judgment on all of
Lilly’s claims, arguing that his claims were barred by the applicable statutes of
limitations. Appellees asserted that Lilly’s federal constitutional claims were
subject to a two-year limitations period and Lilly’s Texas Religious Freedom
Restoration Act claim was subject to a one-year limitations period. Appellees
calculated that the limitations periods ran from June 24, 2011, when Lilly received
the TDCJ’s response to his first Step 2 offender grievance form, and asserted that
his claims were barred by the statutes of limitations when filed on October 22,
2013.
Lilly argued in his summary judgment response that his claims accrued on
February 1, 2012, when he received the Religious Practice Committee’s decision
regarding his first-filed grievance. Lilly also “pl[ed] the Doctrine of Fraudulent
Concealment, as his affirmative defense to the Statute of Limitations . . . because
of the ‘[d]eceptive methods’ employed by [appellees] to impede [Lilly] from
challenging the [Kosher Kitchen Policy], which [he] discovered was non-
reviewable by inmates on May 10, 2013.” Lilly argued that, pursuant to the Texas
Religious Freedom Restoration Act section 110.006(g), appellees had a duty to
provide their rationale for imposing a substantial burden on his free exercise of
religion. Thus, according to Lilly:
Where a defendant is under a duty to make disclosure but fraudulently
conceals the existence of a cause of action from the party to whom it
belongs, the defendant is estopped from relying on the defense of
limitations until the party learns of the right of action or should have
learned thereof through the exercise of reasonable diligence.
BORDERLON v. PECK, 661 S.W.2d 907, 908 (Tex. 1983);[4] see
(“The brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”).
4
While Borderlon stated this standard, it remanded the case to the trial court to consider
the issue of fraudulent concealment. See Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983);
see also id. at 908-09 (doctrine of fraudulent concealment was not abolished by statute in
6
also TEX. CIV. PRAC. & REM. CODE § 110.006(g). Consequently,
the Defendants will not be permitted to avail themselves of the
protection of the statute of limitations because by their own fraud
[trying to conceal a discriminatory policy from review by inmates as a
means of impeding the policy from being challenged] they have
prevented Plaintiff from seekign [sic] redress within the period of
limitations. To reward a wrongdoer of his own fraudulent
contrivances would make the statute a means of encouraging rather
than preventing fraud. Id. at 909.
(first set of brackets in the original).
The trial court granted summary judgment in favor of appellees on all of
Lilly’s claims based on the statutes of limitations. Lilly requested findings of facts
and conclusions of law, which the trial court denied. Lilly then timely appealed,
challenging the trial court’s order granting summary judgment and the court’s
refusal to sign findings of facts and conclusions of law.
ANALYSIS
I. Summary Judgment5
We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a
traditional motion for summary judgment, the movant must show that there is no
genuine issue of material fact and that judgment should be granted as a matter of
medical malpractice cases).
5
We liberally construe Lilly’s pro se pleadings (just as we liberally construe all litigants’
pleadings) but we hold him to the same standards as a licensed attorney. See Nabelek v.
Bradford, 228 S.W.3d 715, 717 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). Lilly
contends on appeal that the trial court erred in granting summary judgment, and he identifies
specific arguments in support of this contention that are addressed in the majority opinion. Lilly
did not raise the arguments advocated in the dissenting opinion. Therefore, we do not address
them. “A court of appeals commits reversible error when it sua sponte raises grounds to reverse
a summary judgment that were not briefed or argued in the appeal.” Wells Fargo Bank, N.A. v.
Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (citing San Jacinto River Auth. v. Duke, 783 S.W.2d
209, 209–10 (Tex. 1990) (per curiam)). Reversing on the grounds advocated by the dissenting
opinion would run afoul of this precept.
7
law. Tex. R. Civ. P. 166a(c); Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In
conducting our review, we take as true all evidence favorable to the nonmovant,
and we make all reasonable inferences in the nonmovant’s favor. KPMG Peat
Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
When a defendant moves for summary judgment on the basis of an
affirmative defense such as limitations, it has the burden to conclusively prove all
the elements of the affirmative defense as a matter of law. Id. A defendant who
moves for summary judgment based on the statute of limitations must (1)
conclusively prove when the cause of action accrued; and (2) negate the discovery
rule, if it applies and has been pleaded or otherwise raised, by proving as a matter
of law that there is no genuine issue of material fact about when the plaintiff
discovered, or in the exercise of reasonable diligence should have discovered the
nature of its injury. Id. If the movant establishes that the statute of limitations bars
the action, the nonmovant must then adduce summary judgment proof raising a
fact issue to avoid the statute of limitations. Id.
The parties do not disagree about the applicable limitations periods. Lilly
brought his federal constitutional claims pursuant to 42 U.S.C. section 1983, which
provides a cause of action for deprivations of federal constitutional rights under
color of state law. See 42 U.S.C.A. § 1983 (West 2012); Parratt v. Taylor, 451
U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v. Williams,
474 U.S. 327, 330-33 (1986). Congress did not provide a statute of limitations or a
body of tolling rules applicable to section 1983 claims; therefore, courts
considering such claims apply the forum state’s statute of limitations for personal-
injury torts and tolling rules unless the applicable statute of limitations or tolling
rules would be inconsistent with federal law. See Wallace v. Kato, 549 U.S. 384,
387 (2007); Bd. of Regents v. Tomanio, 446 U.S. 478, 483-86 (1980); Li v. Univ. of
Tex. Health Sci. Ctr. at Houston, 984 S.W.2d 647, 651 (Tex. App.—Houston [14th
8
Dist.] 1998, pet. denied). Lilly does not contend that the applicable Texas statute
of limitations or tolling rules are inconsistent with federal law. In Texas, the
limitations period for a personal-injury tort is two years; therefore, the limitations
period for a section 1983 cause of action in Texas is two years. See Tex. Civ. Prac.
& Rem. Code Ann. § 16.003(a) (Vernon Supp. 2014); see also Li, 984 S.W.2d at
651.
Lilly also asserts a claim under the Texas Religious Freedom Restoration
Act. See Tex. Civ. Prac. & Rem. Code Ann. § 110.003. The act prohibits a
government agency from substantially burdening a person’s free exercise of
religion, with certain exceptions. See id. § 110.003(a), (b). The statute of
limitations for a claim brought under the Religious Freedom Restoration Act is one
year from “the date the person knew or should have known of the substantial
burden on the person’s free exercise of religion.” Id. § 110.007(a) (Vernon 2011).
Lilly does not assert that the discovery rule applied to delay the accrual of
his causes of action; therefore, we do not consider the rule’s application to this
case. See KPMG, 988 S.W.2d at 748; cf. Wagner & Brown, Ltd. v. Horwood, 58
S.W.3d 732, 734 (Tex. 2001) (“We have described the discovery rule as ‘a very
limited exception to statutes of limitations,’ and have condoned its use only when
the nature of the plaintiff’s injury is both inherently undiscoverable and objectively
verifiable.”) (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453,
456 (Tex. 1996)).
A. Inmate Grievance System
In his first issue, Lilly contends that his causes of action did not accrue and
the limitations periods did not begin to run until he was authorized to seek a
judicial remedy, which occurred only after he received the Religious Practice
9
Committee’s disposition on February 1, 2012.6 Lilly states: “Since [Lilly] is
confined in the TDCJ, Texas Government Code (TEX. GOVT. CODE) mandate
[sic] that he seek his judicial remedy after he receives a written decision from the
highest authority provided for in the grievance system.” Lilly cites Texas
Government Code section 501.008(d)(1) for his proposition. He does not cite or
address section 501.008(d)(2).
Texas Government Code section 501.008(d) provides, in full:
An inmate may not file a claim in state court regarding operative facts
for which the [TDCJ] grievance system provides the exclusive
administrative remedy until:
(1) the inmate receives a written decision issued by the highest
authority provided for in the grievance system; or
(2) if the inmate has not received a written decision described
by Subdivision (1), the 180th day after the date the grievance is
filed.
Tex. Gov’t Code Ann. § 501.008(d) (Vernon 2012).
Texas Government Code section 501.008(e) provides:
The limitations period applicable to a claim arising out of the same
operative facts as a claim for which the grievance system provides the
exclusive remedy:
6
Lilly asserts in his appellate brief:
Normally, [Lilly’s] causes of action would have accrued on February 1, 2012,
because that was the date he received [n]otice from the highest authority provided
for in the grievance system, the [Religious Practice Committee], denying his
request on Step 1 grievance #2011124533 [i.e., Lilly’s first Step 1 offender
grievance form, filed on March 24, 2011], to receive his daily pork-free meals
from the kosher kitchen in comports with his religious requirement. Thus
[Lilly’s] Texas Religious Freedom Restoration Act claim was due ‘one-year’ from
the February 1, 2012 date, on February 1, 2013. Likewise, his Title 42 United
States Code Section 1983 claim was due ‘two-years’ from February 1, 2012, on
February 1, 2014.
10
(1) is suspended on the filing of the grievance; and
(2) remains suspended until the earlier of the following dates:
(A) the 180th day after the date the grievance is filed; or
(B) the date the inmate receives the written decision
described by Subsection (d)(1).
Id. § 501.008(e) (Vernon 2012).
Lilly filed his first grievance on March 24, 2011, complaining that the TDCJ
failed to provide him a kosher diet and that Rabbi Goldstein refused to add his
name to the kosher kitchen list. The warden responded to Lilly’s grievance,
stating: “Your grievance has been reviewed. In order to address your concerns
appropriately, the unit Chaplain has submitted HQ150 form to the Religious
Practice Committee in Huntsville. Wait for their disposition.” Lilly escalated his
first grievance by filing a Step 2 offender grievance form, to which Pierce
responded on June 24, 2011: “Your complaint has been received and investigated.
Your grievance was answered appropriately in Step 1. The Religious Practice
Committee (RPC) has your request and it is scheduled for review the next time
they meet on June 24, 2011. The RPC meets every 90 days. No further action is
warranted at this time.”
The TDCJ’s Step 1 and Step 2 responses to Lilly’s grievance forms arguably
suggest that the Religious Practice Committee was the “highest authority provided
for in the grievance system.” See id. § 501.008(d)(1). Appellees dispute that the
Religious Practice Committee was the highest authority provided for in the
grievance system, but did not provide summary judgment evidence conclusively
establishing that another person or entity was the highest authority. We need not
decide that question, however, because in any event, Lilly was authorized under
section 501.008(d)(2) to seek a remedy in state court on September 20, 2011 —
11
which is the 180th day after he filed his grievance — regardless of section
501.008(d)(1)’s operation.
Likewise, the limitations periods for Lilly’s causes of action as alleged
began to run, at the latest, on September 20, 2011, pursuant to Texas Government
Code section 501.008(e)(2)(A), regardless of whether Lilly had received a written
decision from the highest authority provided for in the grievance system.
Therefore, Lilly’s claims were barred by the applicable one-year and two-year
statutes of limitations when Lilly filed his lawsuit on October 22, 2013, unless the
limitations periods were otherwise tolled. See Tex. Civ. Prac. & Rem. Code Ann.
§ 110.007(a); id. § 16.003(a); Wallace, 549 U.S. at 387; Li, 984 S.W.2d at 651.
We overrule Lilly’s first issue.
B. Fraudulent Concealment Doctrine
In his second issue, Lilly contends that the doctrine of fraudulent
concealment tolled the limitations periods until May 10, 2013. He asserts:
[Lilly] plead [sic] the Doctrine of fraudulent concealment to the bar of
the statutes of limitations defense of [appellees]. Fraudulent
concealment tolls an action’s accrual period until plaintiff learned
[sic] of, or should have discovered, the deceitful conduct or facts
giving rise to his causes of action. The [TDCJ] established a ‘policy’
that only the Judaic inmates could use the kosher kitchen without a
legitimate penological interest, and[,] as a means to keep other
religious inmates from challenging the policy as favoring the Judaic
religion, mandated that the policy is not reviewable by inmates. The
policy was applied to [Lilly] to deny him his request to eat from the
kosher kitchen, when [Lilly] requested to review the policy to see if it
actually excluded him, not knowing the policy was non-reviewable by
inmates; [Pierce], in concert with other prison officials, used deceit to
keep the knowledge the policy was non-reviewable by inmates secret,
by giving [Lilly] false information or ignoring his request to review
the policy, and applying a ‘double-standard’ to [Lilly’s] scriptural
authority, as a means to keep from revealing the kitchen was restricted
to the Judaic religion.
12
On May 10, 2013, [Lilly] was inadvertently informed the policy was
non-reviewable by inmates. To which [Lilly] was then given more
false and misleading information to try to cover the revelation, by
[Pierce] and other prison officials. Thus, [Lilly’s] accrual date should
commence from the date of the discovery of the fraud; and timely
filed [sic] once he received his Step 2 grievance back on October 11,
2013,[7] which he filed on October 22, 2013. Because the ‘Kosher
Kitchen Policy’ is what this case is predicated on, which was
fraudulently concealed.
Additionally, Lilly argues that appellees had a duty to disclose their rationale for
imposing a substantial burden on Lilly’s free exercise of religion. He cites Texas
Religious Freedom Restoration Act section 110.006(g), which provides:
In dealing with a claim that a person’s free exercise of religion has
been substantially burdened in violation of this chapter, an inmate
grievance system, including an inmate grievance system required
under Section 501.008, Government Code, must provide to the person
making the claim a statement of the government agency’s rationale for
imposing the burden, if any exists, in connection with any adverse
determination made in connection with the claim.
Tex. Civ. Prac. & Rem. Code Ann. § 110.006(g).8
Lilly contends:
[T]he doctrine of fraudulent concealment provides that where a
defendant is under a duty to make disclosure but fraudulent [sic]
conceals the existence of a cause of action from the party to whom it
belongs, the defendant is estopped from relying on the defense of
limitations until the party learns of the right of action or should have
learned thereof through the exercise of reasonable diligence. See
7
Lilly refers to his May 15, 2013 Step 2 offender grievance form, the response to which
Lilly received after he transferred from the Stringfellow Unit to the James Allred Unit. It is
unclear whether Lilly received the Step 2 grievance response on September 30, 2013, as the
grievance form states, or October 11, 2013, as Lilly asserts in his appellate brief. The exact date
Lilly received the response is not dispositive of this appeal.
8
Section 110.006(g) does not purport to toll any limitations period until an inmate
receives the government agency’s rationale. See id.; see also id. § 110.005 (Vernon 2011) (“This
chapter does not affect the application of Section . . . 501.008, Government Code.”).
13
Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351-52 n.4 (Tex.
1990).
While the Moreno court stated this standard, it expressed no opinion on the
doctrine’s applicability to the case. See Moreno v. Sterling Drug, Inc., 787 S.W.2d
348, 352 n.1 (Tex. 1990).
1. Discussion
Fraudulent concealment tolls the statute of limitations after a cause of action
accrues. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011). The
elements of fraudulent concealment are: (1) existence of an underlying tort; (2) the
defendant’s knowledge of the tort; (3) the defendant’s use of deception to conceal
the tort; and (4) the plaintiff’s reasonable reliance on the deception. Markwardt v.
Tex. Indus., Inc., 325 S.W.3d 876, 895 (Tex. App.—Houston [14th Dist.] 2010, no
pet.). “‘The estoppel effect of fraudulent concealment ends when a party learns of
facts, conditions, or circumstances which would cause a reasonably prudent person
to make inquiry, which, if pursued, would lead to discovery of the concealed cause
of action.’” Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 623 (Tex. 2011)
(quoting Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex.1983)). Assuming for
argument’s sake that the fraudulent concealment doctrine applies here as asserted
by Lilly, the doctrine could not forestall summary judgment.
Texas Religious Freedom Restoration Act section 110.006(g) required the
TDCJ to provide a statement of its rationale for imposing a burden, if any existed,
in connection with an adverse decision made in connection with Lilly’s free
exercise of religion claim. See Tex. Civ. Prac. & Rem. Code Ann. § 110.006(g).
Arguably, the TDCJ’s grievance system did not provide such a statement.9
9
Pierce’s response on June 24, 2011, to Lilly’s Step 2 offender grievance form — which
appellees assert was a final decision — stated that Lilly’s request was referred to the Religious
Practice Committee; Pierce’s response did not purport to offer a rationale as described by section
14
Nevertheless, appellees’ alleged concealment of their section 110.006(g)
statement of rationale did not conceal Lilly’s causes of action. As alleged, Lilly’s
Religious Freedom Restoration Act claim and section 1983 claims were based on
appellees’ denials of a kosher diet to Lilly and appellees’ refusal to add Lilly’s
name to the kosher kitchen list. Lilly knew that he was denied a kosher diet and
knew that he had been rejected from the kosher kitchen list as early as March 2011,
when Rabbi Goldstein denied Lilly’s request to be added to the list and Lilly first
filed a grievance. Appellees’ “deceit,” if any, did not conceal these facts
underlying Lilly’s causes of action; therefore, we determine that Lilly did not raise
a fact issue regarding the doctrine of fraudulent concealment. See Exxon Corp. v.
Emerald Oil & Gas Co., 348 S.W.3d 194, 209 (Tex. 2011) (the doctrine of
fraudulent concealment did not toll the limitations period where plaintiff had
“actual knowledge of alleged injury-causing conduct”); cf. Etan Indus., Inc., 359
S.W.3d at 623 (the estoppel effect of defendant’s presumed fraudulent
concealment ended when plaintiffs were appraised of facts, conditions, and
circumstances sufficient to cause a reasonable person to make inquiry that would
lead to the discovery of the concealed cause of action.). We overrule Lilly’s
second issue.
We hold that the trial court properly granted summary judgment in
appellees’ favor on all of Lilly’s claims based on the statutes of limitations.10
II. Findings of Fact and Conclusions of Law
In his third issue, Lilly contends that the trial court erred in refusing to sign
110.006(g). Lilly does not explain why he would be entitled to review the Kosher Kitchen
Policy under section 110.006(g).
10
We do not reach Lilly’s issue that the trial erred in granting summary judgment based
on the Prison Litigation Reform Act section 1997e(e) because we determine that the court
correctly granted summary judgment based on the statutes of limitations. See 42 U.S.C.A. §
1997e(e) (West 2012); Tex. R. App. P. 47.1.
15
findings of fact and conclusions of law upon his request. Findings of fact and
conclusions of law “‘have no place’ in a summary judgment proceeding [because]
for summary judgment to be rendered, there cannot be a ‘genuine issue as to any
material fact’, Tex. R. Civ. P. 166a(c), and the legal grounds are limited to those
stated in the motion and response, Stiles v. Resolution Trust Corp., 867 S.W.2d 24,
26 (Tex. 1993).” IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440,
441 (Tex. 1997). We reject Lilly’s third issue.
CONCLUSION
Having rejected Lilly’s issues that the trial court erred in granting summary
judgment in favor of appellees based on the statutes of limitations and in denying
Lilly’s request for findings of fact and conclusions of law, we affirm the trial
court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Frost, C.J.,
dissenting).
16