Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. v. El Pistolon II, Ltd.Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. v. El Pistolon II, Ltd.
Argued March 23, 2023
JUSTICE HUDDLE delivered the opinion of the Court.
The plaintiff in this case sued for defective design and development of a commercial property. After lengthy appeals, the suit was dismissed for failure to file a certificate of merit that satisfied the requirements of
I. Background
El Pistolón II, Ltd. hired Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. “to perform architectural work” related to a property development in McAllen in late 2005 or early 2006. According to El Pistolón, Levinson1 negligently designed and developed the property.
El Pistolón sued Levinson in June 2010 for breach of contract and negligence. But it failed to include a certificate of merit as required by
After our Court‘s remand, but before the trial court dismissed the suit without prejudice in May 2018, El Pistolón filed a new suit against Levinson. The 2018 petition alleges the same facts and causes of action as the 2010 petitions but includes a new certificate of merit. It also adds the assertion that “any and all applicable statutes of limitations have been tolled by the doctrine of equitable tolling and other similar princip[les].” In support of that contention, El Pistolón pleads that it diligently prosecuted its previous suit and that its “ignorance of the expansion of the certificate of merit requirements that [this Court] would eventually articulate was reasonable.”
Levinson moved for traditional summary judgment, arguing El Pistolón‘s breach of contract and negligence claims are both barred by limitations. See
In response, El Pistolón emphasized that it demonstrated diligence in pursuing its claims by suing in 2010 and maintaining its causes of action against Levinson ever since. It argued for equitable tolling under Hand and noted it “actively pursued [its] judicial remedies by filing a defective pleading during the statutory period.” See Czerwinski v. Univ. of Tex. Health Sci. Ctr. at Hous. Sch. of Nursing, 116 S.W.3d 119, 122–23 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The trial court granted Levinson‘s motion and rendered a take-nothing judgment.
The court of appeals reversed. 627 S.W.3d 494, 501 (Tex. App.—Corpus Christi–Edinburg 2021). Relying on Hughes, the court recognized a so-called “legal impediment rule” and held it applied to toll the running of limitations while the 2010 suit was on appeal. Id. at 499-501. It reasoned that requiring El Pistolón to file a successive lawsuit following a favorable ruling in the trial court would be inefficient and lead to potentially conflicting results. Id. at 500. It also observed that “the absence
Levinson petitioned for review. It maintains the court of appeals erred by extending Hughes beyond the legal-malpractice context and urges this Court to reinstate the trial court‘s summary judgment. For its part, El Pistolón contends both that it is entitled to equitable tolling under Hand and that the court of appeals’ reliance on Hughes is “not problematic.” El Pistolón also argues that Levinson‘s motion for summary judgment wrongly placed the summary-judgment burden on El Pistolón and this independently requires this Court to affirm the court of appeals’ judgment.
II. Discussion
A defendant seeking traditional summary judgment on a limitations defense must establish “(1) when the cause of action accrued, and (2) that the plaintiff brought its suit later than the applicable number of years thereafter—i.e., that ‘the statute of limitations has run.‘” Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021) (quoting Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003)). The defendant‘s burden includes negating equitable doctrines the plaintiff has raised “that affect which days count toward the running of limitations” but not those that “overcome the statute of limitations even if the defendant conclusively proves that it has run.” Id. at 88, 92. This distinction may require a court to decide whether an equitable doctrine affects the running of limitations or overcomes the expiration of a limitations period. See Zive v. Sandberg, 644 S.W.3d 169, 174 (Tex. 2022). If the defendant discharges this burden, the plaintiff may still defeat summary judgment by “adduc[ing] summary judgment proof raising a fact issue in avoidance of the statute of limitations.” KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
A. Preliminary Issues
Before turning to whether equitable tolling is available, we address two arguments El Pistolón advances as alternative bases to affirm the court of appeals’ judgment. First, El Pistolón argues the trial court erred in granting summary judgment because Levinson‘s traditional motion for summary judgment incorrectly stated that “[a] party seeking the benefit of equitable tolling bears the burden of showing it applies.” In this Court, Levinson seemingly agrees with El Pistolón‘s contention that, at the summary-judgment stage, it was Levinson that bore the burden to conclusively negate equitable tolling. But Levinson‘s inartful recitation of the summary-judgment burden in the trial court is not a sufficient reason to reverse the trial court‘s summary judgment. Rather, whether Levinson is entitled to summary judgment turns on whether it carried its actual burden to show the limitations period has expired, an issue we examine below.
In a similar vein, El Pistolón suggests the summary judgment cannot stand because Levinson failed to establish the date on which El Pistolón‘s causes of action
Defendants were retained to perform architectural work in connection with the development of the property. Defendants improperly designed the development. As a result, the development costs significantly exceeded any reasonable costs. And, much of the land has been rendered largely unprofitable and essentially useless.
While the petitions do not identify precise dates on which El Pistolón‘s claims accrued, they demonstrate that the facts giving rise to the claims asserted in El Pistolón‘s 2018 petition are the same as those about which El Pistolón complained when it sued in 2010. Having alleged that the facts underlying its claims, and the corresponding legal injury, had already occurred when it sued in 2010, El Pistolón cannot avoid summary judgment by complaining about Levinson‘s failure to pinpoint an accrual date. See KPMG Peat Marwick, 988 S.W.2d at 749-50 (holding the defendant conclusively established the plaintiff‘s claims accrued more than two years before suit was filed based on the plaintiffs earlier petition against a third party for the same legal injury). By adducing uncontroverted evidence that El Pistolón asserted in 2010 the same claims it asserted in 2018, Levinson conclusively established that the claims accrued more than two and four years before El Pistolón filed its 2018 suit. See id. at 750 (noting the plaintiff knew of the legal injury “no later than” when the plaintiff sued a third party two years earlier for the same injury); Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391, 398 (Tex. App.—Dallas 2013, pet. denied) (affirming summary judgment on limitations without determining the exact accrual date because there was no dispute the plaintiffs claim accrued more than four years before she sued).
B. Equitable Tolling
Equitable tolling is unavailable if it is “inconsistent with the text of [a] relevant statute.” Young, 535 U.S. at 49 (quoting United States v. Beggerly, 524 U.S. 38, 48 (1998)); see also Tex. Workers’ Comp. Ins. Fund v. DEL Indus., Inc., 35 S.W.3d 591, 596 (Tex. 2000) (“Where the common law is revised by statute, the statute controls.” (quoting Bartley v. Guillot, 990 S.W.2d 481, 485 (Tex. App.—Houston [14th Dist.] 1999, pet. denied))). For example, we have held that equitable tolling does not apply to a claim under the Deceptive Trade Practices-Consumer Protection Act because the DTPA conveys the Legislature‘s explicit policy determination that only the two exceptions expressed in the statute apply to the DTPA‘s statute of limitations. Underkofler v. Vanasek, 53 S.W.3d 343, 346 (Tex. 2001) (refusing to “rewrite” the DTPA to add Hughes tolling as a third exception to the DTPA‘s statute of limitations); see also Gonzales v. Sw. Olshan Found. Repair Co., 400 S.W.3d 52, 59 (Tex. 2013) (holding the DTPA‘s express adoption of two exceptions to its statute of limitations “forecloses the application of the common-law doctrine of fraudulent concealment to DTPA claims“). We have similarly held the discovery rule, which delays a claim‘s accrual when applicable, is inconsistent with Section 16.003(b) of the Civil Practice and Remedies Code and therefore does not apply to wrongful-death claims because Section 16.003(b) specifies that such claims accrue on the date of death. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).
The court of appeals relegated to a footnote its analysis of whether equitable tolling is inconsistent with Section 150.002. See 627 S.W.3d at 501 n.3. Likely because Levinson did not urge that tolling would be inconsistent with Section 150.002, the court summarily concluded the statute does not foreclose consideration of equitable tolling. Id. But the court of appeals’ terse treatment of the question ignored surrounding textual evidence to the contrary.2 See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 133 (Tex. 2019) (noting our approach to statutory construction “requires us to study the language of the specific provision at issue, within the context of the statute as a whole“). While we disapprove of the court of appeals’ cursory analysis on this question, we do not decide today whether Section 150.002 forecloses equitable tolling. Rather, because the potential inconsistency between tolling and the statute‘s text was not advanced as a ground for summary judgment, we leave that question open and turn to the equitable-tolling issue on which the parties focused.
Our Court has invoked equitable tolling sparingly, and, even then, we have emphasized its limited scope. For instance, in cases involving misnomer—where the petition merely misnames the correct defendant—“limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition.” Enserch Corp. v. Parker, 794 S.W.2d 2, 4–5 (Tex. 1990). But we have made clear that tolling is generally not available in cases of misidentification, which involve suing the wrong defendant with a name similar to the one against which suit was intended. In re Greater Hous. Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 & n.1 (Tex. 2009).3
Considering Hughes‘s limited scope, the court of appeals should not have invoked it to support equitable tolling. El Pistolón defends the court of appeals’ reliance on Hughes on the ground that the policy rationales underlying Hughes support its application here. But we have cautioned that Hughes must not be extended even when its animating principles might favor its application. See Erikson, 590 S.W.3d at 566 (“[W]e look to the rule, not its motivating policies, to determine its application.“); Apex Towing, 41 S.W.3d at 122 (“[W]ithout re-examining whether the policy reasons behind the tolling rule apply in each legal-malpractice case matching the Hughes paradigm, courts should simply apply the Hughes tolling rule to the category of legal-malpractice cases encompassed within its definition.“); Murphy, 964 S.W.2d at 272 (declining to extend Hughes to a claim for accounting malpractice even though “prosecuting both the tax suit and a malpractice suit at the same time would have required plaintiffs to take inconsistent positions“).
In a tacit acknowledgment of Hughes‘s limited scope, the court of appeals reasoned that Hughes is but one incarnation of a broader “legal impediment rule.” See 627 S.W.3d at 499. It and other courts of appeals have quoted the same formulation of this purported rule, born from a turn-of-the-century treatise: “Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” A.S.H. Bristow & John Lehman, Limitations of Actions, in 25 CYCLOPEDIA OF LAW AND PROCEDURE 963, 1278 (William Mack ed. 1907); see, e.g., 627 S.W.3d at 499 (quoting Hughes, 821 S.W.2d at 157).
Our decisions do not support the court of appeals’ adoption of such a broad rule. The 1907 treatise cited a single Texas case: Bowen v. Kirkland, 44 S.W. 189 (Tex. App.—Dallas 1897, writ denied). 25 CYCLOPEDIA OF LAW AND PROCEDURE 1278 n.95. In that case, the court of appeals observed that this Court “has clearly recognized and enforced the principle that, where one is restrained by process of court from suing upon his cause of action, limitations do not run against him while so restrained.” Bowen, 44 S.W. at 192. But the Bowen court noted this doctrine is “confined to cases where (1) the original proceeding in equity
This leaves us with El Pistolón‘s assertion that some other equitable-tolling principle applies. Because our Court has not articulated a general test for determining when equitable tolling is available, the parties point us to relevant authorities of federal courts and our courts of appeals. Their briefs mention various equitable-tolling tests adopted by a number of different courts. But they primarily frame their arguments around the test articulated in Hand. In that case, the Dallas Court of Appeals rejected an argument that the contractual limitations period to file an ERISA claim should be equitably tolled. Hand, 83 S.W.3d at 293–94. In arriving at that conclusion, the court weighed five factors borrowed from a First Circuit opinion: “(1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one‘s rights; (4) absence of prejudice to the defendant; and (5) a plaintiffs reasonableness in remaining ignorant of the notice requirement.” Id. at 293 (citing Jobe v. Immigr. & Naturalization Serv., 238 F.3d 96, 100 (1st Cir. 2001) (en banc)).
We think the Hand test is an unsuitable lens through which to focus our inquiry here. The first, second, and fifth factors will never support tolling when the relevant limitations period is codified in a statute, as ours are, because litigants are presumed to know the law. See Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n.3 (Tex. 1990) (“[A]ll persons are
El Pistolón urges that it is entitled to equitable tolling because it demonstrated diligence in pursuing its 2010 suit, irrespective of the fact that it ultimately was dismissed. But demonstrating diligence in the appellate process alone is not a sufficient basis for avoiding a statute of limitations. In short, none of the circumstances in this case persuade us to deviate from the general rule that the mere pendency of an identical previous suit does not toll the running of the applicable limitations periods in the event suit is refiled after dismissal. Cf. Apex Towing, 41 S.W.3d at 122 (“We continue to believe ... that in the area of limitations, bright-line rules generally represent the better approach ... .“).
Finally, El Pistolón claims it should benefit from equitable tolling because its initial suit was dismissed based on a procedurally defective pleading. It relies on another federal principle our courts of appeals have referenced to the effect that equitable tolling applies when “the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period.” E.g., Smith v. J-Hite, Inc., 127 S.W.3d 837, 843 (Tex. App.—Eastland 2003, no pet.) (citing Czerwinski, 116 S.W.3d at 122–23) (declining to apply equitable tolling when a federal court‘s dismissal of the plaintiff‘s earlier suit was because the court denied the plaintiffs application to proceed as a pauper, not because of a defective pleading). That principle was articulated in Irwin v. Department of Veterans Affairs, in which the Supreme Court of the United States described federal courts’ general approach to equitable tolling:
Federal courts have typically extended equitable relief [as between private litigants] only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary‘s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.
498 U.S. 89, 96 (1990) (footnotes omitted). Notably, the Court did not apply the principle championed by El Pistolón. It held the thirty-day period to file a Title VII complaint, which began when the plaintiffs attorney received a notification letter, was not tolled due to the attorney‘s absence from his office when the notice was received, characterizing it as “a garden variety claim of excusable neglect” at best. Id.
Ultimately, the broad procedural-defect rule El Pistolón urges us to adopt suffers from the same infirmity as the court of appeals’ broad legal-impediment rule: our cases do not support it. They have, instead, made equitable tolling available only in carefully circumscribed contexts. For example, as mentioned above, within the category of “procedural defects,” our cases expressly permit cure of a procedural defect through relation-back only in narrow circumstances. El Pistolón does not cite, and we have not located, a case suggesting a claimant is entitled to equitable tolling or relation-back any time it needs to correct a procedural defect. Indeed, adopting the broad procedural-defect rule pressed by El Pistolón would expand the availability of equitable tolling beyond both what our cases allow and what the U.S. Supreme Court‘s more recent decisions envision.5 We therefore decline to adopt such a sweeping rule. Instead, we recognize, as our lower courts have before, that the dismissal of an action does not toll the running of a limitations period because it is as if the suit was never filed.6
In sum, we hold that none of the equitable-tolling principles proffered by the court of appeals or El Pistolón operates to save El Pistolón‘s claims. The trial court correctly concluded that Levinson conclusively established its entitlement to summary judgment based on its limitations defense.
The court of appeals erred in holding that El Pistolón was entitled to equitable tolling. Neither Hughes nor any other asserted equitable-tolling doctrine supports tolling in this case. Accordingly, Levinson carried its burden to demonstrate its entitlement to summary judgment on its limitations defense. We therefore reverse the judgment of the court of appeals and reinstate the trial court‘s judgment.
Rebeca A. Huddle
Justice
OPINION DELIVERED: June 16, 2023
American Pipe tolling is, like other tolling doctrines, context-specific and carefully circumscribed. It has been applied when a putative class member sues the class-action defendant individually after class certification is denied. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983) (holding American Pipe tolling applies to class members who later file individual claims and is not limited to intervenors). We express no opinion on such cases, and our decision today has no bearing on the availability of tolling under American Pipe.