Full Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-26-00077-CV TEAM DGR, LLC, Appellant V. YOUNG MO KANG, Appellee On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 2025-96-A Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef Concurring Opinion by Justice Rambin MEMORANDUM OPINION On March 8, 2022, Steven Craig Stotts was hauling race cars for Team DGR, LLC, when he “failed to control his speed” and struck Young Mo Kang’s vehicle from behind, seriously injuring him.1 On January 17, 2025, Kang brought a personal-injury lawsuit against Team DGR. Team DGR pled the affirmative defense of limitations and filed a traditional motion for summary judgment asserting that Kang failed to bring his lawsuit within the two-year limitations period. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. In response, Kang argued that limitations was tolled because his head trauma, caused by the accident, rendered him disabled and of unsound mind. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.001(a)(2). The trial court agreed with Kang and denied Team DGR’s summary judgment motion. In this permissive appeal, Team DGR questions the denial of its traditional motion for summary judgment based on the statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (Supp.). In its order, the trial court certified the following question for immediate appeal: As a matter of law, does a defendant moving for traditional summary judgment on limitations conclusively negate unsound-mind tolling under [Section] 16.001 [of the Texas Civil Practice and Remedies Code] when the record shows that [(]1) the plaintiff had no preexisting mental incapacity and experienced only transient altered mental status immediately after the accident, [(]2) the plaintiff retained counsel shortly after the accident, and [(]3) the plaintiff pursued the same claim through counsel during the limitations period, notwithstanding later evidence of post-accident cognitive symptoms. 1 These are the facts at the summary judgment stage. 2 Applying the relevant caselaw to the question posed by the trial court in this case, we conclude that the trial court correctly denied Team DGR’s motion for summary judgment. I. Standard of Review “A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.” Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021) (quoting Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017)) (quoting KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999))). In addition, the defendant who filed a traditional motion for summary judgment, as opposed to a no-evidence motion, “must also conclusively negate application of the discovery rule and any tolling doctrines pleaded as an exception to limitations.” Id. at 85 (quoting Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019)). Moreover, “courts ‘never shift the burden of proof to the non-movant unless and until the movant has “establish[ed] his entitlement to a summary judgment . . . by conclusively proving all essential elements of his cause of action or defense as a matter of law.”’” Id. at 87–88 (alteration in original) (quoting Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989) (quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979))). Here, “[w]e review de novo whether [Team DGR] met [its] burden.” Id. at 88. “[T]o obtain traditional summary judgment on a limitations defense, the defendant must conclusively prove (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.’” Id. at 89 (quoting Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003)). “[T]he defendant [also] has the burden regarding any issues raised that affect which days 3 count toward the running of limitations—such as accrual, the discovery rule, and tolling.” Id. at 88. “[I]f the defendant carries that burden and conclusively establishes its defense, the plaintiff can avoid summary judgment by raising a genuine issue of material fact on any equitable defense that its suit should not be barred even though the limitations period has run . . . .” Id. at 89 (citing Rincones, 520 S.W.3d at 593). When this occurs, “issues affecting the limitations calculation also become part of the defendant’s traditional summary judgment burden when they are properly raised.” Id. Accordingly, “the defendant must conclusively negate any tolling doctrines asserted.” Id. at 92. II. The Unsound-Mind Tolling Provision Here, Kang asserted “the unsound-mind tolling statute,” which “effectively operates to delay accrual of a claim . . . if the plaintiff is under a disability when the ‘limitations period starts’” since “the time of the disability is not included in [the] period.” Id. at 95 (alteration in original) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 16.001(b), (d)). This tolling provision is treated “like the discovery rule: if you are of unsound mind, it will be more difficult for you to discover your injury.” Id. Given the summary judgment standards, Team DGR “had the burden to ‘conclusively negate’ [Kang’s] assertion of mental incapacity.” Id. at 97 (quoting Erikson, 590 S.W.3d at 563). When a defendant “offer[s] no evidence regarding [a plaintiff’s] soundness of mind,” it fails to carry its burden. Id. “[T]olling of limitations based on the plaintiff’s unsound mind is not restricted to those who have been adjudged insane or mentally incompetent.” Rollins v. S. Baptist Convention, 628 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) (citing Freeman v. Am. 4 Motorists Ins. Co., 53 S.W.3d 710, 713 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). “To establish an entitlement to tolling of limitations based on unsound mind [at trial], a plaintiff has to either produce specific evidence that shows he did not have the mental capacity to pursue his suit or submit a fact-based expert opinion to this effect.”2 Id. (citing Freeman, 53 S.W.3d at 713). “A plaintiff lacks the mental capacity to pursue his suit if he is unable to participate in, control, or understand the progression and disposition of the suit.” Id. (citing Ruiz v. Conoco, Inc., 868 S.W.2d 752, 755 (Tex. 1993)). “In assessing a plaintiff’s mental capacity, courts should consider, for example, the degree to which he was capable of giving information and testifying.” Id. (citing Ruiz, 868 S.W.2d at 756). “[A] lesser degree of incapacity or partial disability may qualify as unsound mind so long as the evidence ultimately shows the plaintiff lacked the ability to pursue or participate in the suit.” Id. at 597. Thus, “diminished mental capacity” caused by an accident, “profound neurocognitive impairment,” or “allegations of post-traumatic stress disorder and memory repression are not incompatible with unsound-mind tolling as a matter of law.” Id. (first quoting Casu v. CBI Na-Con, Inc., 881 S.W.2d 32, 35 (Tex. App.—Houston [14th Dist.] 1994, no writ); and then second quoting Palla v. McDonald, 877 S.W.2d 472, 475 (Tex. App.—Houston [1st Dist.] 1994, no writ)). It is “[t]he ability to give information and testify, rather than mere access to the courts, [that] is an important factor in deciding whether a plaintiff lacked a viable opportunity to protect his legal rights on account of being of unsound mind.” Id. (citing Ruiz, 868 S.W.2d at 755–56). 2 “As discussed above, the burden does not shift to the plaintiff until the defendant has conclusively established its entitlement to traditional summary judgment, and the burden at trial is immaterial.” Draughon, 631 S.W.3d at 90. 5 III. The Summary-Judgment Evidence In its traditional motion, Team DGR argued that the cause of action accrued on the date of the accident and noted that Kang did not file suit until “ten months and nine days after the statute of limitations had run.” Even so, it had the burden of conclusively negating Kang’s asserted unsound-mind tolling provision. See Draughon, 631 S.W.3d at 88.3 In support of the tolling provision, Kang’s summary-judgment evidence included his medical records and the affidavit of Dr. Chang B. Shin, the neurologist who treated Kang “since April 2022[,] following his rollover motor-vehicle accident.” The record shows that Kang spoke little English and instead communicated in Korean. On the day of the March 8 accident, Kang’s medical records show that he arrived at the emergency room at 5:13 a.m. and presented “with altered mental status,” which rendered him unable to speak. As a result, Kang, who was sixty- three years old, was “[n]ot responding to questions in English or Korean.” By 6:23 a.m., Kang was able to speak and communicate about his pain, but his CT scan showed “[m]ild soft tissue swelling [in his] right occipital scalp.” After being diagnosed with his physical injuries and “[a]ltered mental status, unspecified,” Kang was stabilized, offered medication for pain, and discharged with instructions to follow up on his care. Shin states in his affidavit that Kang’s emergency-room records were “consistent with a concussion and acute neurological impairment.” Shin said that Kang “sustained a concussion and brain injury in that accident” and “[f]rom the outset, [Kang] exhibited confusion, impaired 3 “If a defendant prefers to place the burden on the plaintiff to raise a fact issue regarding any aspects of limitations on which the plaintiff would have the burden at trial, it is free to file a no-evidence motion for summary judgment as to those matters.” Id. at 85. Where a defendant files “a traditional motion for summary judgment and d[oes] not conclusively negate unsound-mind tolling,” summary judgment in the defendant’s favor cannot stand. Id. 6 memory, poor judgment, and slowed cognitive processing.” Shin, whose observations were “based in significant part on observing [Kang] over multiple clinical encounters,” stated that Kang “exhibit[ed] symptoms that include[d] . . . difficulties with memory, impaired judgment, confusion, and reduced cognitive processing speed,” and opined that “Kang’s cognitive impairments . . . persisted well beyond January 17, 2023.” Shin said that Kang’s “chronic and intractable moderate to severe pain,” his “moderate to sever[e] depression including suicidal ideation[,] and [his] severe degree of anxiety” “collectively contribute[d] to an overall state of mental unsoundness.” Shin noted that “Kang’s presentation is typical of patients with severe concussions, akin to athletes who appear functional but later have no memory or comprehension of events,” and averred that his impairments “rendered Mr. Kang unable to fully understand or manage his personal or legal affairs such as signing contracts.” In his medical opinion, and based on his evaluation and treatment of Kang, Shin said that Kang’s “traumatic brain injury and resulting cognitive impairments significantly affected his ability to independently manage and understand complex matters for a substantial period following the accident.” Team DGR argues that it met its burden because, among other things, Kang’s emergency-room records show recovery instead of incapacity and because Kang hired counsel within two weeks of the accident. To its summary judgment motion, Team DGR attached March 22, 2022, letters of representation from Kang’s counsel. Team DGR also attached Kang’s deposition excerpts showing that Kang was able to rent a U-Haul and drive it to Washington by himself after the accident and that he was able to make and attend his medical appointments. Kang said that he “was afraid to care for [him]self,” was in severe physical pain, and decided to 7 move in with a friend, Eun Su Cass, who agreed to care for him on the day after he was discharged from the emergency room. Kang testified that, after he hired his lawyer in 2022, he was able to cooperate and work with his attorney. Kang also testified that he lost consciousness during the accident, that someone poured water on his face to revive him, and that he did not remember the details of the accident. For example, Kang did not know whether the accident happened in the morning or whether it was dark at the time. Kang did not know if he had filed an insurance claim on the vehicle he owned and could not say whether his lawyer had pursued a property-damage claim with Team DGR’s insurance company. On the day of his deposition, Kang could not recall his address and could not “remember for sure” how long he had lived there. He could recall that he was married in 2011 but did not remember when he got divorced. In response to Team DGR’s evidence, Kang introduced Cass’s affidavit. Cass, who described Kang as a very capable man before the accident, said she “felt like [she] was caring for a child,” and that Kang “had severe problems with memory, confusion, concentration, and understanding after the accident.” Cass said that Kang “forgot things that had happened only a short time earlier,” “would ask [her] the same question multiple times in the same day[,] and would forget appointments, instructions from doctors, and plans . . . made earlier that same day.” Cass said Kang “often appeared relatively normal during short conversations with other people,” but that “it would become clear that he did not actually remember or understand what had been discussed.” According to Cass, Kang often “had no recollection of important details or was confused about what had been said” after meeting with someone. Cass said she frequently 8 scheduled Kang’s medical appointments, reminded him of dates and times, and often took him to the appointments herself so he did not miss them because “he would forget where he needed to go.” Cass also testified that, contrary to Kang’s testimony, she “helped make contact with the law office and helped arrange [a] meeting because [Kang] did not know how to handle that process himself.” According to Cass, “[e]ven after the law office began representing him, Mr. Kang continued to have significant difficulty understanding what was happening in his case” and would not “have been able to understand the legal process he was involved in” without her assistance. Cass said that, even though “Kang testified that he was able to do most things for himself shortly after the accident,” his testimony was inaccurate based on what she experienced and that Kang “relied heavily on [her] for communication, appointments, paperwork, transportation, and understanding important matters.” Based on her “daily, firsthand observations [for] over more than a year,” Cass did not believe Kang “could independently manage complicated matters, understand complex information, or make informed decisions about important issues in his life.” IV. Analysis Team DGR argues that “[t]his appeal presents a narrow question: whether Appellee Kang’s cognitive impairment rose to the level of statutory incapacity under [Section] 16.001(a)(2) by rendering him unable to participate in, control, or understand the progression and disposition of his accident claim.” Such framing of the issue turns the burden of proof on its head. Rather, the question is whether Team DGR “‘conclusively negate[d]’ [Kang’s] assertion 9 of mental incapacity.” Id. at 97 (quoting Erikson, 590 S.W.3d at 563). During our analysis, we “view[] the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Erikson, 590 S.W.3d at 563. Here, viewing the evidence in this light, we find that Kang’s evidence of his cognitive impairments is not incompatible with unsound-mind tolling as a matter of law. See Rollins, 628 S.W.3d at 597. Kang’s emergency-room records show that he presented with an altered-mental status, was unable to speak for a short time, and had “[m]ild soft tissue swelling [in his] right occipital scalp.” Shin treated Kang, who had “difficulties with memory, impaired judgment, confusion, and reduced cognitive processing speed.” Shin averred that Kang had a “traumatic brain injury and resulting cognitive impairments” that “significantly affected his ability to independently manage and understand complex matters for a substantial period following the accident” and that such impairments persisted well beyond January 17, 2023. Cass also discussed Kang’s cognitive impairments and said that she felt as if she “was caring for a child.” According to Cass, “Kang had severe problems with memory, confusion, [and] concentration,” and often forgot conversations. Cass said she helped Kang find counsel and that Kang did not understand what was happening in his case, which required her assistance. Even during his deposition, Kang did not remember where he lived, what time of day the accident happened, or any details from the accident. He also did not remember if his counsel had pursued a claim for property damage to his vehicle. 10 Team DGR argues that the fact Kang hired counsel shortly after the accident shows that he could communicate and cooperate with counsel, but the mere fact that counsel is hired to represent a person with diminished capacity or cognitive impairment should not deny that person the benefit of a tolling provision until he can communicate with counsel in a sufficient manner.4 See Ruiz, 868 S.W.2d at 756 (finding that “the mere commencement of a lawsuit by, or on behalf of, a legally incapacitated individual is, considered alone, insufficient to deny the protection of the tolling provision”). In any case, the evidence was conflicting as to whether Kang hired counsel by himself or whether Cass helped him to do so, and counsel’s letters of representation show merely that they were hired to represent Kang. Moreover, the fact that an attorney was hired to represent Kang did not negate Cass’s or Shin’s affidavits that Kang was unable to manage his affairs, retain conversations, or understand complex issues like his legal rights. As a result, the question of whether, and to what degree, Kang was able to participate in, control, or understand the progression and disposition of his lawsuit was not conclusively answered. After reviewing the appellate record, we conclude, as did the trial court, that Team DGR failed to conclusively negate the unsound-mind tolling provision as a matter of law. V. Conclusion We affirm the trial court’s denial of Team DGR’s traditional motion for summary judgment. Charles van Cleef Justice 4 Indeed, it may be difficult for counsel to realize the existence or extent of a disability until after counsel is hired and eventually obtains a plaintiff’s medical records. 11 CONCURRENCE I join in the decision of the Court. I write separately to comment on this: the parties did not contest the way Rollins applied Section 16.001. “[T]he ‘adversary system is designed around the premise that the parties know what is best for them.’” In re Tafel, 738 S.W.3d 440, 448–49 (Tex. 2026) (orig. proceeding) (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring)). Consequently, I write separately to observe that the Court’s decision is a resolution consistent with party-presentation principles, but it does not constitute an examined assessment of Rollins. See Megalomedia Inc. v. Philadelphia Indem. Ins. Co., No. 23-20570, 2026 WL 2683018, at *20 (5th Cir. Sept. 14, 2026) (Oldham, J. dissenting) (“The dangers of the party[-]presentation principle to original [statutory] meaning are most severe if a robust version of the principle is combined with an expansive version of stare decisis.” (quoting RANDY E. BARNETT & LAWRENCE B. SOLUM, Making the Party Presentation Principle Safe for Originalism, 174 U. PA. L. Rev. 947, 1020 (2026))). Jeff Rambin Justice Date Submitted: October 13, 2026 Date Decided: November 2, 2026 12