AFFIRMED and Opinion Filed April 27, 2020 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00854-CV SONIA M. CASTILLO, Appellant V. BRANCH BANKING & TRUST COM PANY, SUCCESSOR- IN-INTEREST TO COLONIAL BANK, Appellee On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-16153 MEMORANDUM OPINION Before Justices Myers, Par tida-Kipness, and Reichek Opinion by Justice Reichek This case involves a dispute over who has the rights to proceed s from the sale of property. Branch Banking & Trust Co. brought suit against S onia M. Castillo seeking a declaration that its lien on the property was superio r to Castillo’s. Following competing motions for summary judgment, the trial cou rt granted the Bank’s motion and denied Castillo’s, declared the Bank’s lien s uperior, and ordered that the Bank held exclusive rights to the funds. Castillo cha llenges those rulings on appeal. For the reasons set out below, we affirm the trial cou rt’s judgment.2 Factual Background Castillo is the longtime secretary and “dear friend” of James C. Morris. In 2006, Morris took out two notes with Colonial Bank. The notes were revolving lines of credit. Note 1 was $1.5 milli on and, after amendment, had a maturity date of July 11, 2012. Note 2 was $500,000 and, after extensions, had a mat urity date of September 15, 2009. The notes were secured by property at I-63 5 and George Bush Tollway pursuant to Deeds of Trust. Colonial Bank failed, and the FDIC subsequently sold Colonial’ s assets, including the Morris notes, to Branch Banking & Trust (“the Ban k”). After the Bank obtained the Notes, Morris defa ulted. Although the Bank sent n otice of default, opportunity to cure, and intent to accelerate, the Bank took no other action until it sued Morris on May 2, 2011 for breach of the Notes. Morris cou nterclaimed in February 2013, challenging the validity and enforceability of t he notes and deeds of trust. Morris sought declarations regarding (1) the validity a nd enforceability of the loan documents, (2) the rights of the parties as to the “nature of the lawful obligations, if any, imposed on [him]” by the loan documents, a nd (3) the rights of the parties as to the real property, “as no assignments to [the Bank] has been made of any security interest in the property and fraudulent, forged or altered documents appear in its chain of title.” In addition to declaratory reli ef, Morris brought causes of action for fraud, fraud in the inducement, negligence and ne gligent3 misrepresentation, breach of contract, and breach of fiduciary duty and duty of good faith and fair dealing. The Bank did not seek to foreclose on the lien while the parties litigated the legitimacy of the le gal instruments by which the lien was established. Litigation continued for more tha n four years, delayed in part by Morris twice filing for bankruptcy. Castillo was listed as a creditor of Mo rris in both bankruptcies. Ultimately, the trial court gran ted partial summary judgment in the Bank’s favor and left the remaining issues to be tried to a jury. Shortly befor e the jury trial, Castillo sued Morris in district court in Collin County, claiming she lo aned him money and he did not repay her. Two days after she filed the suit, the t rial court signed an Agreed Judgment awarding Castillo about $300,000. Nine days la ter, on February 20, 2015, Castillo filed her abstr act of judgment in Dallas Cou nty. The Morris case was tried to a jury in April, and the jury fo und in the Bank’s favor. The trial court signed the final judgment in October 20 15, and Morris appealed to this Court, which affirmed the judgment on August 2 4, 2017. See Morris v. Branch Banking & Trust Co. , No. 05-15-01249-CV, 2017 WL 3634334, at *1 (Tex. App.—Dallas Aug. 27, 2017, pet. denied) (mem. op.). Mor ris then appealed to the Texas Supreme Court, which denied review on January 12, 2018. Finally, he appealed to the United States S upreme Court, which denied Morri s’s petition for writ of certiorari on October 1, 2018. 139 S. Ct. 122 (2018).4 While the appeal was pending, the following occurred. On Septe mber 27, 2017, one month after this Court affirmed the judgment, the Ban k filed a postjudgment application for appointment of a receiver to take poss ession of the property and sell it. The trial court appointed the receiver and instru cted him to take possession, market, collect rents, and sell the property and to pay the proceeds to the Bank. Thereafter, on January 8 , 2018, Castillo filed an “invol untary bankruptcy petition” against Morris to stop the sale of the property by th e receiver. Shortly after the petition was filed, the bankruptcy court issued an order di recting both Castillo and Morris to appear and show cause why the petition should not be dismissed. The bankruptcy court noted Morris’s previous bankruptcy filings inv olving the property and indicated its “concern” that Castillo, who was Morris’s “se cretary for 34 years,” had filed the petition in violatio n of a “bar order” precluding Morris from any refiling for two years. Thereafter, Castillo filed a motion to dismiss the bankruptcy, which the court granted on April 27, 2018. One month later, after the recei ver moved for approval of sale of the property, Castillo intervened in the state c ourt post-judgment receiversh ip proceeding. She alleged she had a “proportionate interest” in Morris’s assets b ased on the 2015 agreed judgment and her subsequent abstract of judgment. She a lso alleged that the Bank had “no superior lien or other rights superior” to hers wi th respect to Morris’s nonexempt assets.5 The property was sold in November 2018 for $2.25 million. As p art of an escrow agreement, $400,000 was he ld in escrow pending resolutio n of Castillo’s abstract of judgment. The trial court ordered $1.275 million o f the remaining proceeds distributed to the Bank and discharged the receiver. The Bank brought this declaratory judgment suit against Castil lo to determine the rights to the funds held in escrow. In its petition, the B ank alleged it has a deed of trust lien on the property filed in 2006 that is superior to Castillo’s abstract of judgment filed in 2015 and sought a corresponding declaration. Castillo filed an answer asserting a general denial and affirmative defenses, inc luding the statute of limitations. She alleged that the Bank did not timely assert i ts rights under the deed of trust and consequently its cla ims as to priority are barred by limitations. The parties filed cross motions for summary judgment on the lim itations issue. In her motion for summary judgment, Castillo asserted that she and the Bank are both claiming priority to the sales proceeds, which are not suf ficient to pay both judgments. She asserted that her 2015 abstract of judgment had priority over the Bank’s 2006 deed of trust lien because the Bank’s deed of trust lien became “void” when it failed to foreclose on the property within four years o f the accrual of the cause of action. She asserted that the Bank filed suit on the notes in 2011, but did not seek foreclosure on the deeds of trust. And, even allowing for tolling of limitations during the bankruptcies, she argued that the latest that limitations could6 have expired was June 25, 2016, l ong before the Bank sought its remedy under the deed of trust. Consequently, sh e asserted the trial court shou ld declare that her judgment lien was superior to the Bank’s. The Bank responded to the motion and filed its own traditional motion for summary judgment on the ground that limitations had not run on its deed of trust lien because limitations was tolled not only by the three bankr uptcy proceedings and subsequent receivership but also by the underlying Morris litigation in which Morris filed a counterclaim challenging the validity of the lien. Alt ernatively, it argued the federal “extender” statute exte nded limitations to six years in stead of four. See 12 U.S.C. § 1821(d)(14)(B). The trial court granted the Banks’s motion for summary judgment and denied Castillo’s. The trial court decr eed that (1) the Bank’s lien i s superior to Castillo’s “purported abstract of judgment lien”; (2) the sale of the prop erty was free and clear of Castillo’s purported lien; and (3) the Bank had the exclusiv e right to and is entitled to the escrowed funds. Finally, the trial court ordered that t he Bank recover its attorney’s fees from Castillo. Castillo appealed.
Standard of Review We review the trial court’s ruling on a motion for summary jud gment de novo.
Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). To prevail on a traditional motion for summary judgment, the moving party has t he burden to7 demonstrate that no genuine issue of material fact exists and, therefore, it is entitled to judgment as a matter of law. T EX

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. P. 166a(c); Lightning Oil Co. v. Anadarko E & P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017). More specifically, the moving party must present evi dence conclusively establishin g its claim or negating an element of the respondent’s claim or defense as a m atter of law. KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015). W hen considering whether this burden has been met, we review the evidence in the light m ost favorable to the nonmovant, indulge every reasonabl e inference in the nonmovant’ s favor, and resolve all doubts against the motion. Lightning Oil Co. , 520 S.W.3d at 45. If both parties move for summary judgment and the trial court grants on e motion and denies the other, we review both parties’ summary judgment evidence an d determine all questions presented. Id . We then render the judgment the trial court should have rendered. Id

. Analysis On appeal, Castillo challenges th e trial court’s granting of t he Bank’s motion for summary judgment and the de nial of hers. She argues that h er judgment lien on the property is the only valid lie n and has priority over the o ne claimed by the Bank. Specifically, she asserts that (1) even considering tolling as a result of the intervening bankruptcy cases, limitations woul d have expired long before th e Bank sought a remedy under its deed of trust and (2) there were no circumstan ces giving rise to a8 tolling of limitations other than the bankruptcy stays. As to the second argument, she asserts the 2011 Morris litigation did not toll limitations and the federal “extender statute” did not extend limitations to six years. Be cause we conclude the
Morris litigation is dispositive of t he issue, we begin with it. The statute of limitations for a lien under a deed of trust is four years. Under section 16.035(a), a person must bring suit for the recovery of real property or the foreclosure of a real property lien not later than four years a fter the day the cause of action accrues. T EX

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. § 16.035(a). A “real property lien” includes a deed of trust. See id . § 16.035(g)(2). Sec tion 16.035(b) provides that a sale of real property under a power of sale in a mortgag e or deed of trust that creates a real property lien must be made not later than four y ears after the date the cause of action accrues. Id . § 16.035(b) (West 2002). Once limitations expires, the real property lien and a power of sale to enforce the real prop erty lien become void.
Id . § 16.035(d). The cause of action for foreclosure of a deed of trust lien ac crues––and limitations commences––on the maturity date of the final instal lment or when the holder exercises its option to accelerate. See Hardy v. Wells Fargo Bank, N.A. , No. 01-12-00945-CV, 2014 WL 7473762, a t *3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, no pet.) (mem. op.) (i f no acceleration, holder’s cau se of action for foreclosure accrues on maturity date of final installment); PNC Mortg. v. Howard ,9 No. 05-17-01484-CV, 2019 WL 2575052, at *6 (Tex. App.—Dallas Ju ne 24, 2019, pet. filed) (mem. op.) (explaining that once note is accelerate d, cause of action for foreclosure of deed of trust lien securing note accrues and sal e of property must occur within four years). Unequivocal action, such as filing s uit indicating that the entire debt is due, is sufficient to show acceleration. See Joy Corp. v. Nob Hill N. Props., Ltd. , 543 S.W.2d 691, 694–95 (Tex. Civ. App.—Tyler 1976, no pet.). Here, the evidence showed that the maturity date on Note 1 was July 11, 2012. Before that date, however, the Bank sued Morris for breach of t he Note on May 2, 2011, which was the equivalent of accelerating the Note. See id. , 542 S.W.2d at 694–95. Consequently, the cause of action on Note 1 accrued on May 2, 2011 and, absent any tolling, limitations expired on May 2, 2015. 1 Note 2, however, accrued on its maturity date, which was September 15, 2009. See Hardy , No. 01-12-00945- CV, 2014 WL 7473762, at *3. Thus, absent any tolling provision , limitations of Note 2 expired on September 15, 2013. The Bank asserts limitations was tolled by the Morris litigation when Morris counterclaimed, challenging both his liability on the Notes and the validity of the

1 The Bank argues the accrual date on this Note was January 27, 2012, a date it pulls from its first amended petition in the Morris litigation. The Bank provides no authority for its position a nd does not explain why the date of the original pe tition is not controllin g. In its motion, it simply claimed that Morris did not dispute that date in the underlying suit and “[f]or tha t reason it is used in this action.” Even assuming the truth of that statement, Castillo was not a party to the Morris suit and the Bank does not explain how Castillo would therefore be bound by Morris’s failure to object in that action. Regardless, given our analysis with respect to the tolling of the underlying litigation, our r esult would be the same under either date.10 deed of trust lien. The Bank argues limitations was tolled fro m the date of the counterclaim, February 18, 2013, u ntil the appeals ended on Oct ober 1, 2018, rendering the Bank’s rights under the deed of trust valid at th e time it sought a forced sale through a receiver in Oct ober 2017. Castillo does not dis pute that if the underlying Morris litigation tolled limitations in this case, then the Bank’s ri ghts under the deed of trust were not lost to limitations. But, Cas tillo disputes that the
Morris litigation tolled limitations. The primary purpose of limitations statutes is to prevent liti gation of stale or fraudulent claims. Erikson v. Renda , 590 S.W.3d 557, 569 (Tex. 2019). Limitations statutes afford plaintiffs what the legislature deems a reasona ble time to present their claims and protection for defendants and the courts from having to deal with cases in which the search for the truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories , disappearance of documents, or otherwise. Id

. At the same time, Texas courts have long recognized that “[w]h ere a person is prevented from exercising his legal remedy by the pendency o f legal proceedings, the time during which he is thus prevented should not be counte d against him in determining whether limitations have barred his right.” Cavitt v. Amsler , 242 S.W. 246, 249 (Tex. App.—Austin 1922, writ dism’d w.o.j.) (op. on mo t. for reh’g). In
Cavitt , the plaintiff (Cavitt) sued Amsler to have shares in a millin g company that11 were in Amsler’s name canceled and reissued to him, alleging he was owner. Cavitt recovered judgment in that case establishing his ownership. Id . at 248. Subsequently, he filed a petition for mandatory injunction to c ompel the milling company to recognize him as a stockholder by issuing the Amsler stock to him, alleging that, despite the judgmen t in his favor, the company h ad refused to do so. He also alleged the company was paying the dividends to Amsler. Soon after the second suit was filed, Amsler appealed the judgment in the firs t lawsuit, which postponed the second suit pending the resolution of the appeal. The appeals court subsequently affirmed the first judgment on January 19, 1920. Cavitt subsequently obtained judgment in the injunction suit. Id

. The suit that was the focus of the appeal involved Cavitt’s cl aim to recover dividends paid by the milling company to Amsler. Id . at 246. Cavitt lost that suit, and the question on appeal was whether Cavitt’s cause of action was barred by limitations. In ruling in Cavitt’ s favor, the court reasoned a s follows: We hold that the statute of li mitations was suspended during t he appeal referred to, for the reasons that, if [Cavitt] knew that the milling company was paying dividends to Amsler, and had filed suit agai nst the company and against Amsler to recover the same, the company cou ld and doubtless would have replied that the issue involved in suc h suit was the ownership of the stock claimed by both Amsler and Cavit t; that Cavitt could not recover dividends until he established his tit le to the stock; and that this was the i ssue pending in the case on appea l. Id . at 248–49. Thus, limitations on the suit for dividends was t olled while the suit to determine ownership of th e stock was being appealed.12 Decades later, when the Texas Supr eme Court considered for the first time tolling limitations in attorney malpractice cases, it relied on the principle set out in the Cavitt case. See Hughes v. Mahaney & Higgins , 821 S.W.2d 154, 157 (Tex. 1991). The court applied the same rationale to a client’s subs equent malpractice claim against his attorney reas oning, among other things, that the viability of the second cause of action depended on the outcome of the first. Id . at 157. The court subsequently reaffirmed what has since been called the Hughes rule, explaining that we must “appropriately balance t he competing concerns of the ne ed to bar stale claims and avoid prejudice to defendants yet preserve a reasona ble opportunity for plaintiffs to pursue legitimate claims.” See Apex Towing Co. v. Tolin , 41 S.W.3d 118, 122 (Tex. 2001). In sum, cases such as Cavitt and Hughes and its progeny teach that a statute of limitations is tolled for a second cause of action in instan ces where the viability of that second cause of action ne cessarily depends upon the out come of the first case and the pursuit of the second case prior to that outcome would either be improper or result in judicial complications. See Rogers v. Ricane Enters., 930 S.W.2d 157, 167 (Tex. App.—Amarillo 1996, writ denied) (op. on remand). Applying that principle here, we conclude limitations was tolle d by the Morris litigation. In the first cause of action, the Bank sued Morris to recover on the two notes secured by the property, and Morris counterclaimed, chall enging his13 responsibility on the notes as well as the validity of the lien s securing those notes. Once the Bank established Morris’s liability on the notes and d efeated his claim as to the validity of the liens, it requested the trial court appo int a receiver to sell the property and distribute the proc eeds to it. Under the particul ar circumstances at issue here, requiring the Bank either t o foreclose on liens while the ir validity was under attack or lose their rights unde r the statute of limitations cr eated the kind of judicial impediment contemplated by the court in Cavitt. Castillo argues that the Bank was not prevented from seeking foreclosure during the Morris suit. While that is true, just as the court explained in Cavitt , had the Bank sought to foreclose, Castillo “could and doubtless would” have taken action to stop a sale of the property until the issues in the suit were resolved. See Cavitt , 242 S.W. at 249. “[T]he policy underlying the concept of tolling the statute of limitations fo r a second or dependent cause of action is that the courts will not require a party to do a useless, burdensome, or duplicative act that ties up both litigant and court time un necessarily, either without a chance of final resolution (until the underlying suit is resolved) or creating the possibility of conflicting re sults if two different suits w ere filed.” Ricane , 930 S.W.2d at 167. Statutes of limitations are meant to cut off plaintiffs who hav e slept on their rights. S.V. v. R.V. , 933 S.W.2d 1, 32 (Tex. 1996) (Owen, J., dissenting). And, it is “neither uncommon nor undesirable for a lender, faced with a su it . . . challenging14 its right to foreclose on property, to seek court confirmation that it is within its rights and has performed all acts necessary to proceed with foreclosur e under a deed of
trust.” Metcalf v. Wilmington Sav. Fund Soc’y, FSB , No. 03-16-00795-CV, 2017 WL 1228886, at *4 (Tex. App.—Austin Mar. 29, 2017, pet. denied) (mem. op.). Here, the Bank did not slumber on its rights despite efforts by both Morris and Castillo to delay collection with the counterclaims and an obst acle course of bankruptcy filings. It timely sued Morris for breach of the no tes and litigated its case as well as the numerous counterclaims propounded by Morris related to the notes and the validity of the liens that secured them. The Ban k obtained a judgment in its favor, and once it was successful in Morris’s first leve l of appeal, sought a receiver to sell the property. We conclude the statute of li mitations was tolled by the Morris litigation, beginning on the date Morris file d his counterclaim, February 1 8, 2013, and ending on the date United States Supreme Court refused review on Octob er 1, 2018. See Apex Towing , 41 S.W.3d at 119 (tolling peri od lasts “until all appeals on the underlying claim are exhausted or the litigation is otherwise finally concluded”);
Cavitt , 242 S.W. at 248–49 (tolling limit ations during appeal of unde rlying case). The Bank requested appointment of a receiver to sell the proper ty on September 27, 2017. The trial court appointed the receiver on October 23, 20 17 and ordered the property to be sold. The propert y was subsequently sold on Nov ember 20, 2018.15 Note 1 accrued on May 2, 2011 a nd had more than two more years remaining on limitations when Morris’s counterclaim was filed; Note 2 acc rued on September 15, 2009, and had about seven months remaining on limitations a t the time Morris’s counterclaim was filed. Accordingly, under any scenario (when the Bank requested the property sold, when the trial court appointed a receiver an d ordered the property sold, or when the sale was compl eted), the Bank’s deed of trust liens were not void because limitations had not run . The Bank conclusively establi shed that limitations did not bar its claims. Accordi ngly, the trial court did not er r in granting the Bank’s motion for summary judgment, declaring the Bank’s lien superior to Castillo’s, and ordering the Bank had the exclusive right to the funds held in escrow. We overrule Castillo’s issues. We affirm the trial court’s judgment.

190854F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE16 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT SONIA M. CASTILLO, Appellant

No. 05-19-00854-CV V.

BRANCH BANKI NG & TRUSTCOMPANY, SUCCESSOR-ININTEREST TO CO LONIAL BANK, Appellee On Appeal from the 68th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-18-16153. Opinion delivered by JusticeReichek; Justices Myers and PartidaKipness participating.

In accordance with this Court’ s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that appellee BRANCH BANKING & TRUST COMPANY, SUCCESSOR-IN-INTEREST T O COLONIAL BANK recover its costs of this appeal from appellant SONIA M. CASTILLO.
Judgment entered April 27, 2020