Court of Appeals of Texas,

Houston (1st Dist.).

Terry L. BROWN, Appellant,

v.

SIMPSON PASADENA PAPER COMPANY, Appellee.

No. 01-91-00919-CV.

|

July 23, 1992.

Before OLIVER-PARROTT, C.J., and COHEN and WILSON, JJ.

OPINION

COHEN, Justice.

*1 This is an appeal from a take-nothing summary judgment in favor of the defendant in a personal injury case. The trial court ruled the suit was barred by the two-year statute of limitations. Appellant contended that limitations did not begin to run because he was of unsound mind. We affirm.

On March 18, 1988, Brown was hurt while working for Maencor, Inc., a contractor, on the appellee’s premises. He filed suit more than two years later, on June 28, 1990. Brown swore his supervisor threatened to give him a lower paying job if he sued Maencor’s customer, Simpson Pasadena Paper Co. Appellant was under a doctor’s care until May 23, 1988, when he was released to return to work. That same day, his supervisor fired him.

Appellee asserts the trial court erred in granting the summary judgment because his proof established that he was of unsound mind from March 18, 1988 until April, 1989, thus tolling the statute of limitations. Appellant contends that the fear of losing his job, combined with his injuries and the prescription medications he was taking, upset him to the point of being mentally unsound.

Appellee had to prove there was no genuine issue of material fact and that it was entitled to summary judgment as a matter of law. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex. 1985); TEX. R. CIV. P. 166a(c). In reviewing this summary judgment, all doubts about the existence of a genuine fact issue are resolved against appellee. Roskey v. Texas Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex. 1982). We take as true all evidence and reasonable inferences favorable to Brown, and we resolve all reasonable doubts in his favor. Continental Casing Corp. v. Samedan Oil Corp ., 751 S.W.2d 499, 501 (Tex. 1988). When a defendant moves for summary judgment based on limitations, it must prove the suit is barred by limitations as a matter of law. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). If the affirmative defense of limitations is conclusively established, and the plaintiff resists the summary judgment by asserting a response in confession and avoidance, such as unsound mind, the plaintiff must produce evidence which raises a fact issue. Weaver v. Witt, 561 S.W.2d 792, 793 (Tex. 1977).

Appellee conclusively established its limitations defense. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 1986) provides: “A person must bring suit for … personal injury … not later than two years after the date the cause of action accrues.” Appellant knew he was injured, on March 18, 1988. He had until March 18, 1990, to file suit. He filed June 28, 1990, more than 27 months after the injury. Therefore, section 16.003(a) barred his claim.

In order to toll the statute of limitations, appellant relies on TEX. CIV. PRAC. & REM. CODE ANN. § 16.001 (Vernon 1986), which provides, in pertinent part:

(a) For the purposes of this subchapter, a person is under a legal disability if the person is: …

*2 (2) of unsound mind.

(b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.

In appellant’s pleadings, he cited “duress” as the cause of his legal disability, and attached his affidavit, set out below. The same affidavit was the only summary judgment evidence supporting the claim of unsound mind. It provides, in relevant part:

During the entire period from my date of injury on March 18, 1988, until my release by Dr. Thompson on May 23, 1989, I was coerced into foregoing any legal action against Simpson Pasadena Paper Company by explicit and implicit threat from Tom Sawyer and other Maencor employees, that any such exercise of my legal rights against Simpson Pasadena Paper would result in the loss of my job with Maencor. This threat created an overriding fear in my mind that the loss of my job with Maencor would result in destitution for myself and my family under the circumstances, I felt I had no choice but to forego legal action against Simpson Pasadena Paper Company….

Although I had requested and received a full release to return to work, I was physically unable. I was not of sound mind when I requested the full release to go to work. I had done so only out of fear of not being able to provide for my wife who was then seven months pregnant. I did not seek the help of an attorney after I was fired because I had always heard that people who did so would be placed on a black list and would not be hired by any contractor. I have a skill that only a handful of contractors require and I did not want to jeopardize my chances of being hired by any of them….

The second doctor treated my back pain with heavy doses of medication. This medication added to my fears … I got so depressed I was forced to seek the help of drug rehabilitation professionals. They successfully treated me for my dependence upon the prescription medications but this did little to resolve the issue of whether or not I would ever be able to work in my chosen field again….

In approximately November or December of 1988, … I contacted an attorney … to … get my workers compensation benefits reinstated…. It was then that [the attorney] informed me that I only had two years in which to take legal action for my injuries. That revelation didn’t help me any. It only added to my stress. Finally, around April of 1989, I was told by Dr. Lionberger that I would never be able to do the type of work I had previously done … That is when I decided to take some legal action….

(Emphasis added.)

The allegations that appellant was under duress from his supervisor, had financial difficulties, and feared a blacklist is no evidence of an unsound mind. His statement that he was “not of sound mind” is a legal conclusion that is insufficient to raise an issue of fact. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Unsound mind refers “to one who from infirmity of mind is incapable of managing himself or his affairs.” BLACK’S LAW DICTIONARY 1380 (5th ed. 1979). Appellant failed to state any instance where his unsound mind made him incompetent to care for himself or handle his affairs. He offered no evidence from any witness of his unsound mind. In fact, the affidavit shows appellant made rational decisions about his continued medical care and his family’s care, contacted an attorney long before limitations expired, and understood the attorney’s advice about the meaning of the statute of limitations. We hold that no evidence raised a fact issue of appellant’s unsound mind because the statements in appellant’s affidavit lacked the necessary factual specificity for such a finding. Brownlee, 665 S.W.2d at 112. Even if the duress caused by the threatened job loss constituted unsound mind, that duress ended when appellant was fired on May 23, 1988, more than two years before he filed suit. Appellant has not shown when his period of unsound mind began or ended or that it continued for at least three months and 10 days (March 18-June 28) between March 18, 1988 and June 28, 1990. See Smith v. Erhard, 715 S.W.2d 707, 709 (Tex. App.-Austin 1986, writ ref’d n.r.e.).

*3 All points of error are overruled. The judgment is affirmed.

DO NOT PUBLISH-TEX. R. APP. P. 90.