AFFIRM; Opinion Filed January 22, 2020




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-01184-CV

                              RODNEY DRAUGHON, Appellant
                                         V.
                               JOYCIE JOHNSON, Appellee

                       On Appeal from the County Court at Law No. 1
                                 Kaufman County, Texas
                             Trial Court Cause No. 99751-CC

                             MEMORANDUM OPINION
                       Before Justices Pedersen, III, Reichek, and Carlyle
                                   Opinion by Justice Carlyle

       Appellant Rodney Draughon sued his aunt, appellee Joycie Johnson, seeking to cancel a

2006 warranty deed transferring real property from Mr. Draughon to Ms. Johnson. Mr. Draughon

claimed the statute of limitations was tolled due to his “unsound mind.” Ms. Johnson filed a motion

for summary judgment based on limitations, which the trial court granted.

       In two issues on appeal, Mr. Draughon contends the trial court (1) abused its discretion by

striking his summary judgment evidence and (2) erred by granting summary judgment based on

Ms. Johnson’s statute of limitations defense. We affirm in this memorandum opinion. See TEX. R.

APP. P. 47.4.
Background

             In his April 2018 original petition, Mr. Draughon asserted that Ms. Johnson’s claim to the

property “is invalid, unenforceable or without right against Plaintiff because Rodney Draughon

did not have the MENTAL CAPACITY to legally sign the warranty deed to the property subject

to this suit and the defendant knew of Rodney Draughon’s mental incapacity.”1 Ms. Johnson filed

a general denial answer and asserted “the affirmative defense of the four (4) year Statute of

Limitations.”2 Ms. Johnson also filed a motion for traditional summary judgment, contending the

applicable statute of limitations required Mr. Draughon to bring his lawsuit within four years from

the date he signed the warranty deed and therefore his lawsuit was untimely. A copy of the 2006

warranty deed was attached to Ms. Johnson’s summary judgment motion.

             Mr. Draughon filed a summary judgment response asserting, among other things, that his

“mental capacity or unsound mind” is “the very foundation and basis for the lawsuit.” He cited

and quoted Texas Civil Practice and Remedies Code section 16.001, which provides in part (1) “a

person is under a legal disability if the person is . . . of unsound mind” and (2) “[i]f a person entitled

to bring a personal injury action is under a legal disability when the cause of action accrues, the

time of the disability is not included in a limitations period.” TEX. CIV. PRAC. & REM. CODE

§ 16.001(a)–(b). Attached to Mr. Draughon’s summary judgment response were six witness

affidavits pertaining to his “mental incapacity.” Ms. Johnson objected to Mr. Draughon’s witness

affidavits as vague and conclusory.

             At the summary judgment hearing, Mr. Draughon’s counsel argued (1) when Mr. Draughon

signed the warranty deed, “[h]e didn’t have the mental capacity to understand what he was signing,

so any statute of limitations is tolled until he discovers that he has a claim,” and (2) Mr. Draughon


     1
        Mr. Draughon also filed a June 2018 motion asking the trial court to appoint a guardian ad litem for him. The record is silent as to the trial
court’s ruling on that motion.
     2
         The parties do not dispute that the statute of limitations in this case is four years. See TEX. CIV. PRAC. & REM. CODE § 16.051.

                                                                        –2–
has “presented sufficient evidence to raise the issue that [he] lacked the mental capacity to sign the

warranty deed in 2006” and “didn’t discover he had a claim until [Ms. Johnson] filed her Notice

of Eviction in the Spring of 2018.” Ms. Johnson argued Mr. Draughon has the burden “to show he

was mentally incompetent back then” and his evidence did not include “anything to tell this Court

this gentleman was truly mentally incapacitated.” The trial court struck all six of Mr. Draughon’s

witness affidavits and granted summary judgment in Ms. Johnson’s favor.

The trial court did not abuse its discretion by striking Mr. Draughon’s conclusory affidavits

       We review the trial court’s order striking an affidavit for an abuse of discretion. See Lujan

v. Navistar, Inc., 555 S.W.3d 79, 84–85 (Tex. 2018); see also Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985) (trial court abuses discretion by acting without reference

to guiding rules or principles). “Circumstantial evidence may be relevant to the capacity issue

including: (i) the party’s conduct; (ii) circumstances tending to produce a particular mental

condition; and (iii) prior or subsequent existence of a mental condition from which a party’s

capacity or incapacity at the time in question may be inferred.” Texas Capital Bank v. Asche, No.

05-15-00102-CV, 2017 WL 655923, at *7 (Tex. App.—Dallas Feb. 17, 2017, pet. dism’d) (mem.

op). “An expert may testify regarding scientific, technical, or other specialized matters if: (i) the

expert is qualified and (ii) his or her opinion is relevant, reliable, and based on a reliable

foundation.” Id. Conclusory statements in affidavits are not competent evidence to support

summary judgment. See Bastida v. Aznaran, 444 S.W.3d 98, 105 (Tex. App.—Dallas 2014, no

pet.) (citing Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)). A conclusory statement

is one that does not provide the underlying facts to support the conclusion. Id.

       Mr. Draughon’s first witness affidavit states:

       1. Affiant is a Licensed Psychological Associate licensed to practice in Texas.

       2. Affiant is the Licensed Psychological Associate who has responsibility for the
       testing for intellectual disability of RODNEY DRAUGHON (“Principal”).
                                                 –3–
        3. To the best of the Affiant’s knowledge after reasonable inquiry, Affiant believes
        that the Principal has diminished capacity to manage property, including taking
        those actions necessary to obtain, administer, and dispose of real and personal
        property, intangible property, business property, benefits, and income as of today
        September 17, 2018 and in my opinion likely had diminished capacity before 2006.

        There is no recitation of qualifications, no indication how long the licensed psychological

associate has performed that job, and no indication how much time the LPA spent with Mr.

Draughon. The final sentence is wholly conclusory, presenting no basis on which the LPA relied

in coming to the conclusions he recites. See Bombardier Aerospace Corp. v. SPEP Aircraft

Holdings, LLC, 572 S.W.3d 213, 223 (Tex. 2019) (“An expert’s testimony is conclusory when the

expert asserts a conclusion with no basis.”). The trial court did not err in striking this affidavit from

the summary judgment record because it was conclusory.

        The second affidavit states:

        I have worked for Scurry Rosser ISD for 40 years, I have observed Rodney
        Draughon.
               During the time he attended school, he faced many social and Intellectual
        learning struggles. That I witnessed.
               In my opinion Rodney’s Intellectual Disability was obvious prior to 2006
        including while he attended School and that his diminished capacity would prevent,
        would not have the mental capacity to manage property, including capacity to
        manage property, including those actions necessary to obtain, administer, and
        dispose of real property.

        This affidavit, too, is conclusory. That the affiant witnessed Mr. Draughon face “social and

Intellectual learning struggles” is a recitation of a conclusion the affiant came to. The final sentence

referring to the obviousness of Mr. Draughon’s intellectual disability prior to 2006 fares no better.

The trial court did not err in striking this affidavit. See Bastida, 444 S.W.3d at 105.

        The third and fourth affidavits come from two people with the same last name and are

otherwise identical, stating:

        I have known Rodney since he was in Elementary school at Scurry, Rodney
        Attended Scurry Rosser School with my Children, Rodney has Intellectual

                                                  –4–
          Disabled. I have attended school functions as well as over the past years given him
          rides to store and to Doctor appointments.

          Taken him Food and other things he needed.

          Rodney is now the same as he was in Scurry high school. In my opinion Rodney’s
          Intellectual Disability was obvious prior to 2006 and that his diminished capacity
          would prevent, would not have the mental capacity to manage property, including
          capacity to manage property, including those actions necessary to obtain,
          administer, and dispose of real property. Rodney can not drive a car.

          Like the prior affidavit, these affidavits provide a basis to understand the length of time the

affiants have known Mr. Draughon. Here, there is a conclusion that Mr. Draughon is intellectually

disabled. One could conclude that the affiants saw Mr. Draughon at elementary school functions

and later at high school. The statements that affiants gave him rides to the store and doctors’

appointments and took him food and other items provide some context, but are untethered in time

and frequency. The final conclusory statements regarding Mr. Draughon’s capacity present just

that, conclusions. Mr. Draughon’s inability to drive a car provides no basis to support even an

inference that he was of “unsound mind.” The trial court did not abuse its discretion in striking

these affidavits. See id.

          The fifth affidavit states:

          I have Known Rodney since he was 15 years old.

          Rodney is clearly now the same as he was in Scurry high school. In my opinion
          Rodney’s Intellectual Disability was obvious prior to 2006 and that his diminished
          capacity would prevent, would not have the mental capacity to manage property,
          including capacity to manage property, including those actions necessary to obtain,
          administer, and dispose of real property.

          Rodney had Intellectual Disability with major Depression Disorder. Rodney
          Mother and Uncle Wendell have always Took care of Rodney until they both
          passed.

          It too presents a timeframe within which the affiant knows Mr. Draughon followed by

nothing more than conclusions. The trial court did not abuse its discretion in striking this affidavit.

See id.
                                                   –5–
           The sixth affidavit states:

           I have known Rodney since he was 15 year’s Old, Rodney Attended Scurry Rosser
           High School with my daughter, Rodney Has always been the same as he is now
           since child hood mental Disabled and Intellectual Disabled.

           Rodney is now the same as he was in Scurry high school. In my opinion Rodney’s
           Intellectual Disability was obvious prior to 2006 and that his diminished capacity
           would prevent, would not have the mental capacity to manage property, including
           capacity to manage property, including those actions necessary to obtain,
           administer, and dispose of real property.

           I have personally helped Rodney while he was in school. I was a Cosmetologist for
           25 years and cut his hair and bought him clothes while he attended High school.

           Again, we have a timeline for the affiant having known Mr. Draughon but no more than

conclusions. That the affiant cut his hair and bought him clothes in high school presents no

evidence, even circumstantially, regarding his capacity. See Asche, 2017 WL 655923, at *7–8

(discussing circumstantial evidence in this context). These statements could apply equally to a

student with few financial resources and thus, drawing an inference that they support a conclusion

he was of “unsound mind” would be a reach too far. The trial court did not abuse its discretion in

striking Mr. Draughon’s witness affidavits. See Lujan, 555 S.W.3d at 84–85.

           We overrule Mr. Draughon’s first issue.

The trial court properly granted summary judgment

           In Mr. Draughon’s second issue, he contends summary judgment was improper because

Ms. Johnson “merely presented the trial court with the executed deed,” which was insufficient to

conclusively negate the tolling doctrine Mr. Draughon asserted.3 Ms. Johnson argues “[t]he party

asserting the unsound mind tolling provision has a duty of proving it” and “Draughon’s evidence

is insufficient to raise a fact issue on unsound mind.”


      3
        A party moving for traditional summary judgment must show there is no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. TEX. R. CIV. P. 166a(c). We review de novo a trial court’s ruling on a motion for summary judgment. Schlumberger Tech. Corp.
v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018). When reviewing a traditional summary judgment granted in favor of the defendant, we determine
whether the defendant conclusively disproved at least one element of the plaintiff’s claim or conclusively proved every element of an affirmative
defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Durham v. Children’s Med. Ctr. of Dallas, 488 S.W.3d 485, 489 (Tex. App.—Dallas
2016, pet. denied).
                                                                      –6–
          “On summary judgment, a claimant seeking to toll limitations based on the unsound mind

provision bears the burden of producing evidence sufficient to raise a genuine fact issue regarding

his or her mental incapacity for the necessary time period.” Morris v. Unified Housing Found. Inc.,

No. 05-13-01425-CV, 2015 WL 4985599, at *5 (Tex. App.—Dallas Aug. 21, 2015, no pet.) (mem.

op.) (citing Chavez v. Davila, 143 S.W.3d 151, 156 (Tex. App.—San Antonio 2004, pet. denied);

Grace v. Colorito, 4 S.W.3d 765, 769–70 (Tex. App.—Austin 1999, pet. denied)). Although Mr.

Draughon cites summary judgment cases from the supreme court and this court that state “[i]f the

nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling

provision’s application to show his entitlement to summary judgment,”4 none of those cases

involved an unsound mind provision. See Chavez, 143 S.W.3d at 155–56 (distinguishing

limitations challenges in Jennings and Zale from those seeking to avoid summary judgment on

unsound mind theory, on ground that latter “do not challenge the limitations defense, but are

affirmative defenses in the nature of confession and avoidance”). Morris is controlling on these

facts. Pursuant to Morris, after Ms. Johnson conclusively established this case was not filed within

the statute of limitations, Mr. Draughon had the burden to produce evidence raising a fact issue

regarding his mental incapacity. See Morris, 2015 WL 4985599, at *5. The only summary

judgment evidence Mr. Draughon produced was properly struck and thus he failed to meet that

burden.

          We decide Mr. Draughon’s two issues against him and affirm the trial court’s judgment.

                                                                           /Cory L. Carlyle/
                                                                           CORY L. CARLYLE
                                                                           JUSTICE
181184F.P05




     4
       See Diaz v. Westphal, 941 S.W.2d 96, 97–98 (Tex. 1997); Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); Zale Corp. v. Rosenbaum,
520 S.W.2d 889, 891 (Tex. 1975) (per curiam); Am. Realty Trust, Inc. v. Andrews Kurth, LLP, No. 05-16-01433-CV, 2018 WL 2126819, at *2
(Tex. App.—Dallas May 8, 2018, pet. filed) (mem. op.); Dillard v. Parkland Hosp., 136 S.W.3d 16, 19 (Tex. App.—Dallas 2002, no pet.).

                                                                   –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 RODNEY DRAUGHON, Appellant                         On Appeal from the County Court At Law
                                                    No. 1, Kaufman County, Texas
 No. 05-18-01184-CV         V.                      Trial Court Cause No. 99751-CC.
                                                    Opinion delivered by Justice Carlyle.
 JOYCIE JOHNSON, Appellee                           Justices Pedersen, III and Reichek
                                                    participating.

       In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s order.

       It is ORDERED that appellee Joycie Johnson recover her costs of this appeal from
appellant Rodney Draughon.


Judgment entered this 22nd day of January, 2020.




                                              –8–
