Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. v. El Pistolon II, Ltd.

Supreme Court of Texas
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No. 21-0797
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Levinson Alcoser Associates, L.P. and Levinson Associates, Inc.,
Petitioners,
v.
El Pistolón II, Ltd.,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
═══════════════════════════════════════
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 Civil Practice and Remedies Code Section 150.002. The
question we must answer is whether the relevant limitations periods
expired while the suit was on appeal, barring the plaintiff from refiling
the suit with a new certificate of merit. The court of appeals answered
no, holding the running of limitations was equitably tolled under a
legal-impediment rule it divined from Hughes v. Mahaney & Higgins,
821 S.W.2d 154 (Tex. 1991). We hold there was no tolling during the
appeal of the earlier-filed suit. We therefore reverse the judgment of the
court of appeals and reinstate the trial court’s judgment.
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
Section 150.002 of the Civil Practice and Remedies Code. See TEX. CIV.
PRAC. & REM. CODE § 150.002(a) (requiring a plaintiff to file “with the
complaint” a certificate of merit prepared by a third-party licensed or
registered professional in an action “for damages arising out of the
provision of professional services” by such a professional). A few months
later, in response to Levinson’s motion to dismiss, El Pistolón nonsuited
its claims and refiled the suit with a certificate of merit. Levinson again
moved to dismiss, this time challenging the certificate’s substance. See
id. § 150.002(e) (requiring dismissal of a complaint for the failure to file
a compliant certificate of merit). The trial court denied Levinson’s
motion to dismiss, but Levinson ultimately won on appeal.
1 “Levinson” refers to both Levinson Alcoser Associates, L.P. and
Levinson Associates, Inc.
2
The court of appeals held the certificate of merit was deficient as
to El Pistolón’s breach of contract claim but complied with
Section 150.002 with respect to its negligence claim. Levinson Alcoser
Assocs., L.P. v. El Pistolon II, Ltd., 500 S.W.3d 431, 438 (Tex. App.—
Corpus Christi–Edinburg 2015), rev’d on other grounds, 513 S.W.3d 487,
495 (Tex. 2017). Our Court granted Levinson’s petition for review, and
we held the certificate of merit also failed to satisfy the statute’s
requirements as to El Pistolón’s negligence claim. Levinson Alcoser
Assocs., L.P. v. El Pistolón II, Ltd., 513 S.W.3d 487, 495 (Tex. 2017). We
rejected El Pistolón’s argument that our opinion clarified uncertain law
or overruled precedent, warranting a remand in the interest of justice.
Id. at 494–95. We instead remanded to the trial court to determine
whether the statutorily mandated dismissal should be with or without
prejudice. Id. at 495; see TEX. CIV. PRAC. & REM. CODE § 150.002(e)
(“This dismissal may be with prejudice.”).
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.”
3
Levinson moved for traditional summary judgment, arguing El
Pistolón’s breach of contract and negligence claims are both barred by
limitations. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (two-year
statute of limitations for negligent injury to property); id. § 16.004
(four-year statute of limitations for specified contracts); id. § 16.051
(residual four-year statute of limitations). First, Levinson contended
these claims accrued, at the latest, in June 2010, when El Pistolón first
sued. Second, Levinson asserted El Pistolón is not entitled to equitable
tolling under a five-factor test set forth in Hand v. Stevens Transport,
Inc. Employee Benefit Plan, 83 S.W.3d 286, 293 (Tex. App.—Dallas 2002,
no pet.), or other equitable principles. In essence, Levinson argued the
equities do not favor tolling because El Pistolón knew of the relevant
statutes of limitations and could have brought its 2018 suit, with its new
certificate of merit, earlier. Levinson also contended it would be
prejudiced by tolling.
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
4
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 of tolling would create an arbitrary distinction
between plaintiffs whose cases are immediately dismissed without
prejudice and those who successfully defend a motion to dismiss in the
trial court but not on appeal.” Id. Finally, with only a cursory citation
to the statute’s text, the court of appeals held that Section 150.002 is not
inconsistent with and therefore does not foreclose equitable tolling. Id.
at 501 n.3 (noting “limitations periods are customarily subject to
equitable tolling, unless tolling would be inconsistent with the text of
the relevant statute” (quoting Young v. United States, 535 U.S. 43, 49
(2002))).
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.
5
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
6
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 accrued. But it is not always necessary to
establish a precise accrual date if the summary-judgment evidence
conclusively establishes a claim is time-barred. Here, Levinson
attached copies of El Pistolón’s 2010 petitions to its motion for summary
judgment. Each of El Pistolón’s petitions repeats the same allegations:
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
7
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 plaintiff’s
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 plaintiff’s 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.
8
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). These cases illustrate that courts must
thoroughly examine the relevant statutory text before applying any
equitable doctrine that delays accrual or tolls the running of a statute of
limitations. If that analysis reveals an inconsistency between the
statute’s text and a common-law tolling doctrine, the tolling doctrine
must yield. Young, 535 U.S. at 49.
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
2For one, Section 150.002(e) requires a court to dismiss a suit
accompanied by a deficient certificate of merit and grants the discretion to do
9
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
so with prejudice; it does not set forth a procedure for curing a defective
certificate. TEX. CIV. PRAC. & REM. CODE § 150.002(e); cf. id. § 74.351(c) (“If an
expert report has not been served within the period specified by Subsection (a)
because elements of the report are found deficient, the court may grant one
30-day extension to the claimant in order to cure the deficiency.”). And
Section 150.002(g), which the court of appeals did mention, prohibits
construing the statute to extend any applicable limitations period. Id.
§ 150.002(g) (“This statute shall not be construed to extend any applicable
period of limitation or repose.”). A complete statutory analysis would consider
these subsections as well as the import of Section 150.002(c). See id.
§ 150.002(c) (providing a thirty-day grace period for a plaintiff to supplement
a petition with a certificate of merit if the petition is filed within ten days before
a limitations period expires and alleges a certificate of merit could not be
prepared due to such time constraints).
10
against which suit was intended. In re Greater Hous. Orthopaedic
Specialists, Inc., 295 S.W.3d 323, 325 & n.1 (Tex. 2009).3
We have especially taken care to emphasize the limited scope of
Hughes tolling, the doctrine on which the court of appeals relied. In
Hughes, we recognized the running of limitations for a legal-malpractice
claim is tolled until “all appeals on the underlying claim are exhausted
or the litigation is otherwise finally concluded.” Zive, 644 S.W.3d at 175
(emphasis omitted) (quoting Apex Towing Co. v. Tolin, 41 S.W.3d 118,
119 (Tex. 2001)). But as with misnomer and misidentification, we have
been careful to define the rule’s limited scope: “We expressly limited the
rule in Hughes to attorney malpractice in the prosecution or defense of
a claim that results in litigation” and “restricted it to the circumstances
presented” in Hughes. Murphy v. Campbell, 964 S.W.2d 265, 272 (Tex.
1997). We have declined to extend Hughes tolling, “even when the same
policy concerns were implicated.” Erikson v. Renda, 590 S.W.3d 557,
565 (Tex. 2019). Because our precedents have recognized the
availability of equitable tolling in so few contexts, we have cautioned
practitioners to avail themselves of tools designed to avoid protracted
3 We have noted that equitable tolling may be available in a
misidentification case only “if there are two separate, but related, entities that
use a similar trade name and the correct entity had notice of the suit and was
not misled or disadvantaged by the mistake.” Flour Bluff Indep. Sch. Dist. v.
Bass, 133 S.W.3d 272, 274 (Tex. 2004) (concluding equitable tolling was
unavailable because the school district and the Texas Association of School
Boards were two distinct entities with dissimilar trade names); see Price v. Est.
of Anderson, 522 S.W.2d 690, 692 (Tex. 1975) (holding limitations did not bar
a suit in which the plaintiff mistakenly named the decedent’s estate as a
defendant but properly served the estate’s administrator because the
administrator was aware of the facts, had not been misled, and was not
disadvantaged in obtaining relevant evidence to defend).
11
litigation over whether a suit is time-barred. See id. at 570 (noting the
advantages of tolling agreements and protective suits when equitable
tolling is inapplicable).
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.
12
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 had prevented plaintiff from bringing or prosecuting the very
claim to which defendant seeks to interpose the defense of limitation;
and (2) plaintiff was not guilty of laches in proceeding to enforce his
rights.” Id. at 193 (quoting Davis v. Andrews, 30 S.W. 432, 433 (Tex.
1895)) (concluding an action contesting the validity of an estate’s
administration did not prevent the administrator from protecting his
possession of the land at issue). Indeed, just two years before Bowen,
this Court held the doctrine did not apply—there was no legal
impediment—where an injunction restrained a trustee from selling
property because the injunction did not prevent the lender from suing
for the balance of notes secured thereby. Davis, 30 S.W. at 434; see also
Hunt Steed v. Steed, 908 S.W.2d 581, 584 (Tex. App.—Fort Worth 1995,
writ denied) (holding equitable tolling was unavailable because an
appeal of a divorce decree did not impede the appellant from separately
13
suing her ex-mother-in-law). So, considering our own case law, the
purported legal-impediment rule is limited to two circumstances:
(1) where an injunction prevents a claimant from bringing the action,
see Bowen, 44 S.W. at 192–93; and (2) cases covered by Hughes.4 The
appeal of El Pistolón’s 2010 suit does not fit either category. We decline
to recognize a broader rule today and therefore hold there was no “legal
impediment” preventing El Pistolón from filing its 2018 suit earlier.
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
4 Some of our courts of appeals have recognized that the automatic stay
in bankruptcy proceedings tolls the running of statutes of limitations until the
stay is lifted. Citibank N.A. v. Pechua, Inc., 624 S.W.3d 633, 639 (Tex. App.—
Houston [14th Dist.] 2021, pet. denied) (“Although neither we nor the Texas
Supreme Court have expressly addressed the issue . . . , several of our sister
courts and the Fifth Circuit have concluded that tolling principles of Texas
common law are incorporated through [11 U.S.C. § 108(c)] such that filing for
bankruptcy tolls the running of limitations.” (collecting cases)); Peterson v. Tex.
Com. Bank–Austin, Nat’l Ass’n, 844 S.W.2d 291, 294 (Tex. App.—Austin 1992,
no writ) (“[W]e hold that when a claimant is prohibited from bringing suit by
the Bankruptcy Code’s automatic-stay provision, the statute of limitations is
tolled until the stay is lifted.”); see 11 U.S.C. § 362 (describing when a
bankruptcy petition operates as an automatic stay). As this case does not
involve a bankruptcy stay, we express no opinion on these cases.
14
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 plaintiff’s 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 presumed to know the law.”). Similarly, the
fourth factor inevitably cuts against tolling as a defendant will always
be prejudiced, to some degree, by its inability to rely on the relevant
statute of limitations. See Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d
531, 538 (Tex. 2019) (“In addition to affording comfort and repose to the
defendant, statutes of limitation protect the courts and the public from
the perils of adjudicating stale claims.”); see also Baldwin Cnty. Welcome
Ctr. v. Brown, 466 U.S. 147, 152 (1984) (noting that the absence of
prejudice “is not an independent basis” to equitably toll the running of
a limitations period but is only a factor in the inquiry). And the question
of whether the plaintiff was diligent in preserving its rights is too
open-ended to yield a reliably equitable result. To be sure, the filing of
an earlier identical suit within the limitations period is some indication
the plaintiff was diligent in bringing its suit in the first instance. But
15
our courts of appeals have continuously recognized that the running of
a limitations period is not tolled when a suit is dismissed and refiled
“because a dismissal is equivalent to a suit never having been filed.”
E.g., Aguilar v. Morales, 545 S.W.3d 670, 677 (Tex. App.—El Paso 2017,
pet. denied); see also Griffith v. Associated Emps.’ Reciprocal, 10 S.W.2d
129, 131 (Tex. App.—Eastland 1928, writ dism’d w.o.j.) (“When a case is
dismissed and refiled, limitation runs to the date of the refiling.”). We
agree.
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
16
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 plaintiff’s 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 plaintiff’s
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
17
“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
5 Since Irwin, the Supreme Court has adopted a two-prong
equitable-tolling test in the habeas context that requires a showing “that some
extraordinary circumstance stood in [the petitioner’s] way” to prevent filing
within the limitations period. Holland v. Florida, 560 U.S. 631, 649 (2010)
(remanding to determine whether the extraordinary-circumstance prong was
met). And the Supreme Court has expressly left open the question “whether
an even stricter test might apply to a nonhabeas case.” Menominee Indian
Tribe of Wis. v. United States, 577 U.S. 250, 257 n.2 (2016); see id. at 257–58
(assuming the two-prong test applies and declining to apply equitable tolling
because the plaintiff failed to satisfy the extraordinary-circumstance prong).
6 At oral argument, El Pistolón contended that affirming the summary
judgment in Levinson’s favor necessarily undercuts American Pipe &
Construction Co. v. Utah, 414 U.S. 538 (1974), which held the commencement
of a class action suspends limitations “as to all asserted members of the class
who would have been parties had the suit been permitted to continue as a class
action.” Id. at 554; see Asplundh Tree Expert Co. v. Abshire, 517 S.W.3d 320,
339 (Tex. App.—Austin 2017, no pet.) (concluding the running of the statute of
limitations was tolled for the putative class members’ individual claims against
the class-action defendant pending a ruling on class certification under a
doctrine analogous to American Pipe tolling); TEX. INS. CODE § 541.254 (“The
filing of a class action under this subchapter tolls the statute of limitations for
bringing an action by an individual under Section 541.162.”). We disagree.
18
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.
III. Conclusion
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.
19