COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

HUNTLEY FOR T GILL, ROBYN G. ATTAWAY and MIRIAM G. STIRN, Appellants,

v. DAVID HILL, Individually and d/b/a DOH OIL COMPANY, Appellees. § § § § § § No. 08

- 20

- 00081

- CV

Appeal from the 143rd District Court of Reeves County, Texas (TC# 19

- 02

- 22804

- CVR)

CONCURRENCE I concur in the Court ’ s judgment. I write separately to further explain why the Appellants here carried the burden to submit some evidence of their claimed due process violation once the Appellees met their initial summary judgment burden for establishing the statute of limita tions defense

. When a plaintiff files suit outside of the statute of limitations but alleges a reason for doing

so, must the defendant disprove that asserted reason when pursuing a traditional motion for summary judgment on l imitations ? Or must the plaintiff submit some evidence to support the

reason avoiding limitations in its response? Well , it depends. The Texas Supreme Court ’ s latest writing on the question, Draughon v. Johnson , answered the question when the plaintiff claimed that hi s mental incapacity excused an untimely suit to set aside a deed. 631 S.W.3d 81, 85 (Tex.2

2021). S ection 16.001 of the Texas Civil Practice and Remedies Code toll s the limitations period

“ [i]f a person entitled to bring a personal action is under a legal disability ”

— defined as being under 18 years old or “ of unsound mind

. ” T EX .C IV .P RAC .& R EM .C ODE A NN
. § 16.001(a), (b). If the plaintiff has pleaded the tolling provision, Draughon holds that a party advancing a statute of limitations defense through a traditional motion for summary judgment must conclusively negate that tolling provision ’ s applicability. Draughon , 631 S.W.3d at 95 . Stated otherwise, because the plaintiff alleged that he was of unsound mind, the defendant needed to affirmatively negate that contention to prevail on a traditional summary judgment motion based on limitations. The plaintiff carried no burden to prove his mental incapacity in response to the summary judgment motion. And the Draughon court noted other situations that are similarly treated, such as when a party pleads the discovery rule. Id. at 89

- 90 ; Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 834 (Tex. 2018) ( “ 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. ” ). The same is true for other tolling provisions. Draughon , 631 S.W.3d at 92

. ( “ In sum, a plaintiff ’ s assertion that the statute of limitations was tolled falls within the category of issues affecting the running of limitations on which the moving defendant bears the burden. To obtain traditional summary judgment on the ground that the limitations perio d expired before the plaintiff brought suit, the defendant must conclusively negate any tolling doctrines asserted. ” ). Conversely, the plaintiff carries the burden to present some evid ence in its summary judgment response to support certain doctrines that avoid a stat ute of limitations defense

. “ [I] f the defendant carries that burden and conclusively establishes its [limitation s ] 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 fraudulent3

concealment, estoppel, or diligent service. ” Draughon , 631 S.W.3d at 88

- 89, citing Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 593 (Tex. 2017) (estoppel) ; Murray v. San Jacinto Agency,
Inc. , 800 S.W.2d 826, 830 (Tex. 1990) (lack of due diligence in service of process) ; Nichols v. Smith , 507 S.W.2d 518, 52 1 (Tex. 1974) (fraudulent concealment). The court describes these cases as f alling in to a second category call ed reasons to “ avoid ” limitations that are “ independent of the defendant ’ s conclusive showing that the limitations period expired. ” Draughon , 631 S.W.3d at 93

- 94. In summary, t he court reconciled these situations by writing 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 of equitable defenses that defeat limitations even th ough it has run. ” Draughon , 631 S.W.3d at 88. So where does the Appellants ’ lack

- of

- service

- due

- process claim fall? It is not like a tolling provision. The Tax Code has a statutory tolling provision , but that would have required Appellants to be paying the taxes , and so long as they did, their deed claim would have not accrued.
See T EX .T AX C ODE A NN
. § 33.54( b ). Appellants did not plead section 33.54(b) tolling in their petition. Instead, they allege that the 1999 tax suit judgment was void based on the lack of service on the record owners of the property. And that claim is unlike a tolling provision because under their theory of the case, the statu t e of limitations is not simply interrupted

— it never applies. Traditional tolling may come to an end

— that is, the plaintiff reaches the age of majority , or achieves a sound mind

. T EX .C IV .P RAC .& R EM .C ODE A NN
. § 16.001(a), (b). If a party was not served before a judgment was rendered, that fault can n ever be undone. Nor is Appellant s ’ limitations

- avoidance claim like the discovery rule, which delays accrual until the plaintiff knew or in the exercise of reasonable diligence should have known of4

the wrongful act and resulting injury. Schlumberger , 544 S.W. 3d at 834. Appellant s d o not allege the discovery rule nor does their argument turn on when some person learned of the tax sale. Rather, it more resembles a confession and avoidance claim, as it admits that limitations ha ve run, but they avoid its consequences due to lack of service. It is also a claim in equit y , as it asks a court to overturn a judgment outside the confines of the tax statute and divest the Appellees of property that was purchased some nineteen years ear lier in a facially proper tax sale. 1 And Draughon placed

“ equitable defenses that defeat limitations ” into the category of defenses which require a plaintiff to present some evidence in response to the summary judgment. 631 S.W.3d at 88

- 89 . Appellants ’ due proce ss claim most neatly fits into that category. And as the majority notes, Appellants did not present any evidence to demonstrate their due process violation. 2 So while the due

- process lack

- of

- service claim could negate the statute of limitations, the proce dural po sture of the summary judgment record precludes our consideration of th at argument. With this additional explanation, I join the majority opinion.

JEFF ALLEY , Justice August 30 , 2022 Before Rodriguez, C.J., Palafox, and Alley, JJ.

1 We describe a bill of review as an “ equitable proceeding ” t hat allows a court t o set aside a judgment that is no longer subject to regular appeal. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) ; Baker v. Goldsmith , 582 S.W.2d 404, 406 (Tex. 1979)

. How much more so is a collateral attack on a judgment brought even after the time for filing an equitable bill of review.

2 I recognize, of course, that at the time the summary judgment was heard, Appellants would have faced the argument that the kind of extr insic evidence at issue here

— public deed records

— would have been inadmissible in a collateral attack. See York v. State , 373 S.W.3d 32, 41 (Tex. 2012)

. The Texas Supreme Court modified that rule in an appeal arising from the very same tax sale judgment that give s rise to this case. Mitchell v. MAP Resources, Inc. , No. 21

- 0124, 2022 WL 1509745, at *1 (Tex. May 13, 2022)

. I concede that the result here is harsh : the Appellants were not prescient enough to foresee the outcome of the Mitchell case and include their own deed records in their summary jud gment response. But we cannot merely assume what those deed records may have shown , and further assume they would have provide d the original taxing entities with a viable address for service of process.