Preview
FILED
3/22/2024 8:44 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
CAUSE NO. DC-21-06038
THOMAS E. SWIFT Ill, & IN THE DISTRICT COURT
LAURYS P. SWIFT,
Plaintiffs,
Vv
LARRY M. WOLFORD,
INDIVIDUALLY, AND AS TRUSTEE
OF THE LARRY AND DENISE 44TH JUDICIAL DISTRICT
WOLFORD REVOCABLE TRUST;
DENISE L. WOLFORD,
INDIVIDUALLY, AND AS TRUSTEE
OF THE LARRY AND DENISE
WOLFORD REVOCABLE TRUST;
WILLIAM BRADFORD BATSON; &
HOMERO SAUCEDA,
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS
Plaintiffs Thomas E. Swift, Ill and Laurys P. Swift (the “Swifts”) file this Response
(“Response”) to Defendants Larry M. Wolford, Individually and Denise L. Wolford,
Individually’s Motion For Summary Judgment on Limitations (“Limitations-MSJ”), and
William Bradford Batson’s and Homero Sauceda’s Amended Motion for Summary
Judgment (the “BS-MSJ”), on Sauceda’s limitations issue only, as follows:
PRELIMINARY STATEMENT
The arguments made by the Wolfords were previously rejected by this Court, and
have since been rejected by the Fifth Court of Appeals and Supreme Court of Texas.
Further, the Wolfords chose not to move for judgment on the Swifts’ allegations that
limitations was tolled due to alter ego, making this issue moot. The Limitations MSJ is a
groundless, bad-faith instrument designed solely to force the Swifts to incur increased
litigation costs in responding. The Court should treat it as such and summarily deny it.
Further, Sauceda failed to plead and has not shown entitlement to limitations.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 1 of 25
SUMMARY JUDGMENT EVIDENCE
The evidence on which this Response is based is set forth in the following filings,
already on file with the Court, or filed contemporaneously with this Response:
Appendix to Plaintiffs’ Motion for Authorization of Discovery of Net Worth
Evidence (filed February 21, 2024) (the “NWM App.”);
Appendix to Defendants Larry M. Wolford, Individually and Denise L. Wolford,
Individually’s Motion for Summary Judgment on Limitations (filed March 7, 2024)
(‘Limitations-MSJ App.”);
Appendix to William Bradford Batson’s and Homero Sauceda’s Amended Motion
for Summary Judgment (filed March 7, 2024) (the “BS-MSJ App.”); and
Appendix in Support of Plaintiffs’ Response to Limitations Summary Judgment
Motions (filed March 22, 2024) (the “L-Resp. App.”).
Plaintiffs hereby incorporate the exhibits in these filings as set forth within the
underlined citations contained in this Response. See Lance v. Robinson, 543 S.W.3d
723, 731-33 (Tex. 2018); Dousson v. Disch, 629 S.W.2d 111, 112 (Tex. App.—Dallas
1981, writ dism’d w.o.j.). The Swifts further incorporate all court files it asks the Court to
take judicial notice of, as set forth herein.
UNDISPUTED FACTS
As detailed further in multiple summary judgment motions and responses on file
with the Court, and in the Swifts’ pleadings in this matter, Plaintiffs allege that on May
14, 2019, a fire erupted from the Wolfords’ trash in the alleyway behind their property
that caused massive damage to the Swifts’ neighboring home." Plaintiffs allege that the
day before, two longtime workers at the property—Defendants William Batson and
Homero Sauceda (the “Workers”)}—had been staining a pool deck, and threw away
several rags soaked in a flammable stain oil, without complying with the oil’s clear
1 See Limitations-MSJ App. Ex. C (at 2-7); Pls.’ 4th Am. Pet. (“Pet.”) {1 13-21. For purposes of this
Response, further detailed facts are not necessary as they are for the other summary judgment
motions on file.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 2 of 25
warnings regarding spontaneous combustion and in violation of local ordinances
governing flammable material disposal.” Plaintiffs further allege that the Wolfords are
vicariously liable for the Workers actions as their employer and via agency.>
On May 11, 2021, after having sent a demand to the Wolfords (as Trustees),4
and after the Wolfords’ attorney having attempted (but failing) to communicate a
response on behalf of the Wolfords, the Swifts filed suit against the Wolfords, as
Trustees, within the limitations period.5 The Wolfords (as Trustees) answered on June
17, 2021,8 making no mention of capacity issues or that the Swifts sued them in the
wrong capacity.’ And in their initial disclosures, the Wolfords did not raise capacity
issues or indicate that they, individually, were potential parties.§ Instead, they asserted
there were no other potential parties.°
On August 23, 2022, the Swifts later their pleadings to add the Wolfords in their
individual capacities. The Wolfords responded with a Rule 91a Motion (the “91a
Motion”), arguing they, as individuals, were completely new parties to the suit and
limitations barred the claims against them. The Swifts replied by amending their
pleadings (on March 13, 2023) and filing a response (on April 4, 2023) to explain that,
under this Court’s longstanding precedents, a capacity amendment against an existing
defendant does not add a new party.
2 See Limitations-MSJ App. Ex. C (at 2-7); Pet. 17 13-21.
3 See Limitations-MSJ App. Ex. C (at 21-22); Pet. 11 87-96.
4 Of the Larry and Denise Wolford Revocable Trust (the “Trust”).
5 See Limitations-MSJ App. Ex. A (at 1); L-Resp. App. Exs. 1 & 2. The Wolfords’ attempt to
communicate a response to the Swifts failed due to a typo in the email address used by the Wolfords’
attorney (“jerdie@gpm-law.com” vs “jerdle@gpm-law.com”).
6 Under Tex. R. Evid. 201, the Swifts request that the Court take judicial notice of each document
filed in its own record that is referenced in this Response, which they will identify by date throughout
in order to satisfy the “necessary information” standard required by the Rule.
7 Nor did the Wolfords’ response to the Swifts’ demand. See L-Resp. App. Ex. 2.
8 See L-Resp. App. Ex. 3.
9 See L-Resp. App. Ex. 3.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 3 of 25
The Wolfords did not respond to the Swifts’ argument until the 91a Motion
hearing on April 11, 2023, where they argued for the first time that a change in capacity
relates back to the original filing, but an addition does not."° After the hearing, the Swifts
immediately filed a letter brief deconstructing this surprise argument and each authority
the Wolfords raised, and the Court denied the 91a Motion. The Wolfords then attempted
to obtain a writ of mandamus from the Dallas Court of Appeals reversing this Court's
order (by filing of a petition on April 28, 2023), which the Court of Appeals summarily
denied (on May 8, 2023)."
Having failed there, the Wolfords tried again at the Texas Supreme Court (by
filing of a petition on June 6, 2023).'2 On July 14, 2023, the Supreme Court asked all
real parties in interest for a response, which the Workers and Swifts filed (on August 14,
2023, and September 5, 2023, respectively). After considering the parties’ arguments,
the Court rejected the Wolfords’ mandamus request on October 20, 2023 (and rejected
the Wolfords’ motion for rehearing of such on December 15, 2023).
10 See L-Resp. App. Ex. 7. A full copy of this transcript is contained in the September 5, 2023
supplemental mandamus record filed in the Texas Supreme Court mandamus proceeding. See infra
note 12.
4 Under Tex. R. Evid. 201, the Swifts request that the Court take judicial notice of each document
filed in the record of the Court of Appeals of the Fifth District of Texas at Dallas for this mandamus
proceeding (Cause No. 05-23-00393-CV) that is referenced in this Response, which they will identify
by date throughout in order to satisfy the “necessary information” standard required by the Rule. See
Cooper v. McNulty, No. 05-15-00801-CV, 2016 WL 6093999, 2016 Tex. App. LEXIS 11333, at *19
(Tex. App.—Dallas Oct. 19, 2016, no pet.). The Swifts also refer the Court to the direct link to this
proceeding for this purpose: https: search.txcourts.gov/Case.aspx?cn=05-23-00393-
CV&coa=coa05.
1 Under Tex. R. Evid. 201, the Swifts request that the Court take judicial notice of each document
filed in the record of the Supreme Court of Texas for this mandamus proceeding (Cause No. 23-
0418) that is referenced in this Response, which they will identify by date throughout in order to
satisfy the “necessary information” standard required by the Rule. See Cooper, 2016 Tex. App.
LEXIS 11333, at *19. The Swifts also refer the Court to the direct link to this proceeding for this
purpose: https: search.txcourts.gov/Case.aspx?cn=23-0418&coa=cossup.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 4 of 25
ARGUMENT
A. The Wolfords’ Limitations Arguments Are Barred by Law of the Case.
“It's like deja vu all over again.” (Credit: Baseball great Yogi Berra). The
Wolfords’ limitations arguments are nothing but a cut and paste from their prior
unsuccessful Rule 91a arguments before this Court, the Dallas Court of Appeals, and
the Texas Supreme Court. Because the Limitations-MSJ is based on exactly the same
questions of law decided against them by these courts, the law of the case doctrine bars
this Court’s reconsideration of that issue in the context of summary judgment.
The law of the case doctrine is based on public policy and is aimed at preventing
what the Wolfords seek here: relitigation of issues already definitively decided in the
same case. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The doctrine is
intended to achieve uniformity of decision as well as judicial economy and efficiency by
narrowing the issues in successive stages of the litigation. /d. Under the doctrine,
questions of law decided on appeal to a court of last resort will govern the case
throughout its subsequent stages. /d. Although an original proceeding is not an
“appeal,” the doctrine has been held applicable to original proceedings that, like the
Wolfords’ denied mandamus petitions, reached the merits. B S P Mktg. v. Standard
Waste Sys., No. 05-03-00518-CV, 2004 WL 119235, 2004 Tex. App. LEXIS 727, at *3
(Tex. App.—Dallas Jan. 27, 2004, no pet.).
Here, as in their thrice-failed 91a arguments, the Wolfords claim the issue of
limitations can be decided as a matter of law.'? However, these legal issues remain
identical to those already decided. Specifically, on April 11, 2023, this Court held a
33 The 91a Motion was based on the assertion that the Swifts’ claims against them had no basis in law,
ie., that “the allegations, taken as true, together with inferences reasonably drawn from them, do not
entitle the claimant to the relief sought.”
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 5 of 25
hearing on the 91a Motion in which they raised precisely the same legal issues as they
raise in the Limitations-MSJ: that because the Swifts added them as defendants in their
individual capacities, rather than substituting them for the claims against them in their
capacities as trustees, the claims against them in their individual capacities do not relate
back to the Swifts’ Original Petition and are time-barred. Compare:
91a Hearing argument (“their response is based on an argument that this is a
change in a capacity of the parties, and so, therefore, limitations is a toll. But --
but that argument just doesn't sit with the case law. This is not a change in the
capacity of the parties. This is an addition of parties”);*
with
Limitations-MSJ at 1 (‘[t]he allegations made in the First Amended Petition do not
relate back to the Original Petition because the Swifts made no mistake in their
original pleading and do not seek to substitute the Wolfords for a party originally
sued”).
This Court rejected the arguments in support of this proposition when it denied
the 91a Motion. The Wolfords then filed a Petition for Mandamus with the Dallas Court
of Appeals in which they again argued that their addition to the lawsuit in their individual
capacities did not relate back to the Swifts’ original pleadings. In rejecting this Petition,
the Court of Appeals stated: “[a]fter reviewing relators' petition and the record before us,
we conclude that relators have failed to demonstrate entitlement to mandamus relief.”"5
In other words, the Court of Appeals reviewed the Wolfords’ Petition and determined
14 L-Resp. App. Ex. 7; see also Wolfords’ Post-Hearing 91a Letter Brief, filed in this Court on April 12,
2023: “[t]he cases Plaintiffs rely upon deal with changing an existing party’s incorrect capacity to a
correct capacity, not to keeping the party in the suit under the capacity originally sued and then
adding a new and different party—in the form of a new and different capacity.”); Mandamus Petition
at Fifth Court of Appeals, at 14-15 (“Summary of the Argument”); Mandamus Petition at Supreme
Court of Texas, at 1-2 (“Reasons to Grant Mandamus”).
45 See Memorandum Opinion of Fifth Court of Appeals dated May 8, 2023.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 6 of 25
that this Court did not abuse its discretion or act contrary to law in denying the 91a
Motion."®
Undeterred, the Wolfords filed a further Petition for Mandamus with the Texas
Supreme Court, based on the same facts, and again arguing that the individual claims
did not relate back. After the Supreme Court asked for and received responsive briefing
on the issue, on October 20, 2023, it issued its order denying the Petition.
The Supreme Court’s order was also a ruling against the Wolfords on the merits,
as under the Texas Rules of Appellate Procedure, in orderto require responsive briefing
on the Petition, the Court had to be at least “of the tentative opinion that [the Wolfords
were] entitled to the relief sought or that a serious question concerning the relief
requires further consideration . .. .” See Tex. R. App. P. 52.8(b).
The law of the case doctrine clearly precludes this Court from considering the
arguments in the Limitations-MSJ for a fourth time. All the requirements for application
of the doctrine are present here:
(1) The issue of whether, for limitations purposes, an amended petition adding
allegations against the same human being in a different capacity relates back to
the pleading in which they were originally named, is a question of law;
16 Although the Court of Appeals also noted that mandamus relief is not available when the petitioner
has an adequate remedy by appeal, “[t]he Texas Supreme Court has explained that ‘[mJandamus
relief is appropriate when the trial court abuses its discretion in denying a Rule 91a motion to
dismiss.”" In re Disney DTC, LLC, No. 05-23-00485-CV, 2024 WL 358117, 2024 Tex. App. LEXIS
667, at *6 (Tex. App.—Dallas Jan. 31, 2024, orig. proceeding) (quoting In re Farmers Tex. Cnty. Mut.
Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding)).
Accordingly, the Wolfords’ Mandamus Petition was denied by the Court of Appeals on the merits, not
because the Wolfords had an adequate remedy by appeal. See also In re BSP Mktg. Incorporation,
No. 05-03-00496-CV, 2003 WL 1827798, 2003 Tex. App. LEXIS 3004, at *1 (Tex. App.—Dallas Apr.
9, 2003, orig. proceeding), a mandamus ruling found by the Dallas Court of Appeals to be a decision
on the merits in the later B S P appeal (see 2004 Tex. App. LEXIS 727, at *3).
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 7 of 25
(2) The issue has been decided on the merits against the Wolfords by this Court,
the Court of Appeals, and a court of last resort—the Texas Supreme Court; and
(3) The issues presented in the Limitations-MSJ, as well as their supporting facts
and arguments, are not only substantially the same as, but identical to, those
presented in the failed 91a Motion and subsequent Mandamus Petitions.”
See In re Guardianship of Cantu de Villarreal, 330 S.W.3d 11, 20-21 (Tex. App.—
Corpus Christi 2010, no pet.).18 The Wolfords took three swings at the same issue and
struck out. They are not entitled to a fourth swing under the guise of a summary
judgment motion.
B. The Wolfords Failed to Move for Summary Judgment on the Swifts’ Allegations
of Tolling of Limitations by Alter Ego.
Not only is the Limitations-MSJ barred under law of the case, it is moot, because
even if this Court, the Dallas Court of Appeals, and the Texas Supreme Court, all
suddenly changed course and fully accepted the Wolfords’ arguments, the Swifts still
plead that the Trust, and Wolfords acting as Trustees, are the alter egos of the Wolfords
(and vice versa).'? The statute of limitations against a party is tolled on the filing of a
lawsuit against that party’s alter ego until final judgment in the lawsuit. See Matthews
Constr. Co. v. Rosen, 796 S.W.2d 692, 693, 694 (Tex. 1990); Gentry v. Credit Plan
Corp., 528 S.W.2d 571, 575 (Tex. 1975). Because the Wolfords do not challenge the
17 Compare Limitations-MSJ (at 1-12) with 91a Motion and Wolford Letter Brief on file with this
Court, 91a Hearing Transcript (see L-Resp. App. Ex. 7), Mandamus Petition at Fifth Court of
Appeals, at 11-36, Mandamus Petition at Texas Supreme Court, at 1-20, and L-Resp. App. Ex. 8
(table comparing arguments in these proceedings). Compare also Limitations-MSJ_Appx. with
mandamus records from indicated proceedings.
18 Absent new facts, analysis, or argument, appellate court did not need to reconsider issues resolved
in previous mandamus.
19 Pet. (J, 1-2, 6, 83-86.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 8 of 25
Swifts’ allegations that the Trust and Trustees are the alter ego of the Wolfords, the
Court should deny the Limitations-MSJ as moot.
Even assuming the Wolfords’ refusal to move for summary judgment on alter ego
is not fatal, the Court may still satisfy itself that there is adequate summary judgment
evidence creating fact issues on (if not conclusively proving) alter ego:
a The Wolford Residence is the family home for the Wolfords that they built
and have resided in since 2001;7°
The Wolford Residence was originally owned by the Wolfords, individually,
and was transferred by them to the Trust in 2012;2'
The Trust has no assets other than the Wolford Residence;??
The Wolfords, acting as individuals, employed workers to perform work on
Trust property;?2
The Trust document shows that the Wolfords are both the Trust settlors /
creators and its current beneficiaries, the Wolfords retain sole discretion to
revoke the Trust at any time, and the Trust has no separate existence
from the Wolfords during their lifetimes;24
The Trust never had separate bank accounts or financial documents (such
as tax returns, income statements, or balance sheets);
20 NWM App. Ex. 9 (D. Wolford Dep. 13:14—25, 14:18-24, 22:23-23:4).
21 NWM App. Ex. 9 (D. Wolford Dep. 22:23-23:4, 24:14-25:3);
22 NWM App. Ex. 9 (D. Wolford Dep. 35:17—23).
23 NWM App. Ex. 9 (D. Wolford Dep. 54:14-18, 54:20-22).
24 L-Resp. App. Ex. 4.
25 NWM App. Ex. 22.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 9 of 25
g. Outsiders (including Batson and Sauceda) never differentiated between
the Wolfords acting as Trustees and as individuals;76 and
h. Critically, the Wolfords would pay expenses for Trust property or work
done for the Trust property (including Batson’s work and expenses) with
individual personal funds and accounts, or accounts linked with the
Wolfords’ dentistry business.”
This evidence conclusively shows that the Trust is a mere tool or business conduit of
the Wolfords for their ownership of the Wolford Residence, with no real separate
existence, and there is such a “unity between the [Trust] and the [Wolfords individually]
that the separateness of the [Trust] has ceased’ and holding only the [Trust] or
individual liable would result in injustice.” See Nugent v. Estate of Ellickson, 543 S.W.3d
243, 266-67 (Tex. App.—Houston [14th Dist.] 2018, no pet.); W. Hous. Airport Corp. v.
Sw. Invs., No. 01-99-00144-CV, 2001 Tex. App. LEXIS 2827, at **15-16 (Tex. App.—
Houston [1st Dist.] Apr. 26, 2001, pet. denied); see also Moran v. Pardo (In re Life
Partners Holdings, Inc.), No. 4:15-cv-905-O, 2017 U.S. Dist. LEXIS 229247, at **4-5,
30-31 (N.D. Tex. Dec. 29, 2017);; In re Lawler, 47 B.R. 673, 675 (Bankr. N.D. Tex.
1985). This includes the injustice of a potentially uncollectible judgment against the
Trust (due to its only asset possibly being protected from execution under Texas’
homestead laws) while the alter ego (i.e., the Wolfords) go free. See Mancorp, Inc. v.
Culpepper, 836 S.W.2d 844, 846 (Tex. App.—Houston [1st Dist.] 1992, no writ); In re
Great S. Life Ins. Co. Sales Practices Litig., No. 1214, 1999 U.S. Dist. LEXIS 23100, at
**15-18 (N.D. Tex. Sept. 15, 1999).
26 NWM App. Ex. 8 (Batson Dep. 24:1-8); NWM App. Ex. 6 (Sauceda Dep. 15:1-12).
27 NWM App. Ex. 9 (D. Wolford Dep. 44:8—45:20, 46:4—-11, 64:4-23, 64:25-65:17).
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 10 of 25
C. The Hallaway Doctrine Does Not Distinguish Between _a Change and a
Addition of Capacity.
L Hallaway Looked Back to Where the Plaintiff Added Capacity.
In Hallaway v. Thompson, 226 S.W.2d 816, 817 (Tex. 1950), a railway employee
sued his railway employer. 226 S.W.2d at 817. He initially sued “Guy A. Thompson,
Trustee for the St. Louis, Brownsville & Mexico Railway Company (“Mexico Company”),
but later amended his pleadings (in his second amended petition) to add Thompson’s
capacity as “Trustee for the San Antonio, Uvalde & Gulf Railroad Company” (“Gulf
Company’). /d. He eventually amended to sue Thompson solely as Gulf Company
Trustee. /d. at 817-18.
In other words, the employee did not at first change the prior capacity allegation.
Rather, he continued to maintain suit against Thompson in the prior capacity.
Thompson asserted limitations in his capacity as Gulf Company trustee, and both
the trial and appellate court agreed. /d. at 818. But the Supreme Court unanimously
reversed. /d. at 823. Justice Hart expressly looked back to the first pleading adding a
new capacity allegation: the second amended petition, with both alleged capacities. /d.
at 818-19.28 He then went into an extensive analysis of prior authorities addressing the
issue, in particular, Boyd v. United States Mortg. & Tr. Co., 79 N.E. 999, 1000-01 (N.Y.
1907). In Boyd, New York’s highest court considered whether a capacity amendment
brought in “a new party in the fullest sense of that term -- that is to say, a defendant who
had never before been brought into court in this action for any purpose.” Hallaway, 226
S.W.2d at 822 (citing Boyd, 79 N.E. at 1001) (emphasis added).
28 The Wolfords breeze over this critical fact as if it means nothing. See Limitations-MSJ at 8. In
reality, this fact is fatal to their entire argument.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 11 of 25
Justice Hart agreed that the amendment did “not really bring in a new party
defendant” to the lawsuit. /d. at 822-23 (citing Boyd, 79 N.E. at 1001) (emphasis
added). He also agreed that a proper purpose for such an amendment would be to
allow a proper judgment against the party sued:
[T]he mortgage company was served originally and nothing was gained in
having it before the court by the new service, but for the proper entry of the
judgment against it the designation was upon motion changed by striking out
the words “as substituted trustee[.”]
Id. at 822-23 (citing Boyd, 79 N.E. at 1001) (emphasis added). He then concluded,
holding that a capacity amendment against an existing defendant did not add a new
defendant:
[The relation-back statute] expressly provides that an amendment to a
pleading shall not be subject to a plea of limitation where the amendment is
not wholly based on or grows out of a new, distinct or different transaction or
occurrence. Of course, this rule would not apply to an entirely new defendant
who is brought in for the first time by an amendment. However, we think it
can be fairly applied under the facts in this case where the amendment names
the same defendant, but changes the capacity in which he is sued.
Id. at 823 (emphasis added).
Hallaway’s facts belie the Wolfords’ entire argument. If, as the Wolfords contend,
an addition is barred but not a change, a later amendment from an addition to a change
would not have saved the Hallaway plaintiffs claims. Instead, the addition was wrong
from the start, and the Supreme Court would have had no choice but to affirm the
dismissal. The Court however made no distinction between the earlier addition and later
change, and instead focused on the defendant’s overall presence in the lawsuit, noting
he was “at all times fully cognizant of the facts, m4 could not have been misled as to the
basis of the plaintiffs suit by the allegations of the original petition,” and placed at no
“disadvantage in obtaining relevant evidence to defend the suit.” See id. at 820-21
(emphasis added). This holding makes perfect sense because the same individual
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 12 of 25
defendant would be defending against the same conduct regardless. It also makes
common sense because an addition is itself a change.”°
Further, Justice Hart did not require or refer to a “mistake” in his actual holding,
belying the Wolfords’ argument that the Ha/laway doctrine requires a threshold mistake
by the Plaintiff. See id. at 823.
The Wolfords further argue that the key operative fact in Hallaway was that “the
defendant was the only party who could have known the correct capacity.”2° But
nowhere in Hallaway did Justice Hart write that the defendant needed to possess
exclusive knowledge of correct capacity. Indeed, the exact portion of Hallaway the
Wolfords cite in support of this show only that this knowledge must be “peculiarly” (i.e.,
not exclusively, but distinctively)" with the defendant. See id. at 820. The opinion plainly
leaves open the door that the plaintiff could have known the correct capacity was a
possible choice, but chose incorrectly, and was later entitled to rectify that mistake.
L O’Quinn Expressly Allowed Added & Alternative Capacity.
In O’Quinn v. Scott, 251 S.W.2d 168, 169-70 (Tex. App.—Waco 1952, writ ref'd),
the plaintiff first filed suit against the individual partners of W.W. Scott Construction Co.
(‘WW’). The plaintiff later sued WW “as an additional defendant,” including “in the
alternative’ allegations that if the partners were not liable, WW was, and that if WW “no
29 In effect, the Supreme Court here disposed of the legal fiction of separate capacities = separate
parties for limitations purposes, and explained why. The Supreme Court plainly has the power to
create or dispose of common-law legal fictions as warranted. See, cf., Bounds v. Caudle, 560 S.W.2d
925, 926, 927 (Tex. 1977) (disregarding legal fiction of a single capacity within marriage in allowing
exception to common-law interspousal tort immunity doctrine, prior to that doctrine’s full
abolishment).
3° See Limitations-MSJ at 8, 10.
31 See, e.g., Oxford English Dictionary (defining “peculiarly” as “[i]n a way which creates a distinction
from others; particularly, especially; to a remarkable or unusual degree”), available at
https: www.oed.com/search/dictionary/?scope=Entries&q=peculiarly.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 13 of 25
longer existed,” the partners were liable as WW’s trustees. /d. The partners, in their
trustee capacities, argued limitations and the trial court granted summary judgment on
those grounds. /d.
The court of appeals reversed. /d. at 172. The court recognized the mistake in
the initial capacity allegations, but nevertheless found that the defendants knew about
the mistake and were thus charged with notice that claims could later be filed against
them in their correct capacities:
As trustees of the dissolved corporation W. W. Scott and his associates knew
at the time they were brought into court in response to appellants’ original
petition that appellants were mistaken in their allegations to the effect that
the construction company was a partnership when the cause of action therein
declared upon arose, and they were charged with notice that appellants
could and in all reasonable probability would amend their pleadings so as to
sue them in their representative capacity as trustees of the dissolved
corporation when the true facts in that regard were ascertained.
Id. In sum, the court found limitations was inapplicable because the defendants were on
notice that the plaintiff would later allege claims against them in a different capacity. /d.
(citing Hallaway, 226 S.W.2d 816)
It is telling that the Wolfords continue to completely ignore O’Quinn. Indeed, their
ignorance of this opinion after the Swifts’ heavy reliance on it throughout the Supreme
Court’s proceedings is perhaps the biggest tell that the Limitations-MSJ is frivolous and
brought in bad faith. O’Quinn is fatal to their “change” versus “addition” distinction
because the Supreme Court, by refusing the writ in this case,°? allowed the amended,
“alternative” capacity additions to stand and relate back. O’Quinn is also the death knell
for any argument that the amended allegation must correct a mistake in the original
pleading (or that the plaintiff must otherwise choose between capacities). If the Texas
32 See Tex. R. App. P. 56.1(c); Ferreira v. Butler, 575 S.W.3d 331, 335 n.29 (Tex. 2019) (“we refused
the application for writ of error, giving the court's opinion the precedential value of one of our own”).
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 14 of 25
Supreme Court wanted to place such requirements on Texas plaintiffs, it would have
accepted the writ and sent the case back with instructions to eliminate the prior
“mistaken” capacity allegation from the pleading. The fact that it did the opposite means
the Supreme Court decided that additional capacity allegations are acceptable.
Simply put, Hallaway and O’Quinn are controlling and fatal to the Limitations-
MSJ. The Wolfords attempt to argue out of these clear and binding holdings using two
somewhat related pathways: (1) generalized misnomer and misidentification law; and
(2) a brand-new “mistake” requirement for Hallaway and O’Quinn. As shown below,
neither of these pathways have merit, and the Court should waste no time in doing what
every other court has done — reject the Wolfords’ arguments.
D. Misnomer and Misidentification Are Inapposite.
While the Swifts did use three lines of their response to the Rule 91a Motion to
analogize misnomer cases,*° Hallaway and O’Quinn, as Texas Supreme Court
precedents, clearly are an “extension” far beyond the normal reach of misnomer or
misidentification, and stand on their own without going back to those general
standards.** Any alleged mistake requirement of misnomer / misidentification is
inapplicable and cannot be used to graft a similar requirement on the Hallaway doctrine.
The primary and almost exclusive authority the Wolfords argue on this point—
Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011)—is
completely distinguishable. The Wolfords argue that in Bailey, the Court “held there is
no misnomer or misidentification when a party ‘sued exactly whom they intended to
33 See Limitations-MSJ App. Ex. G (at 7).
34 Indeed, Dorsaneo’s Litigation Guide treats them as separate standards. See Dorsaneo, 7 Tex.
Litigation Guide § 111.02[4][d] & [e].
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 15 of 25
sue."*5 But that is not Bailey's controlling language or holding. Bailey instead involved a
motion under the Tort Claims Act to cause the plaintiff to substitute in the government
entity who employed the original defendant. See id. at 396-99; see also Tex. Civ. Prac.
& Rem. Code § 101.106(f). In other words, the plaintiff sought a substitution using a
statutory device expressly created for such purpose, meaning the statement the
Wolfords hang their hat on here is dicta. See Bailey, 332 S.W.3d at 401.°° Even so, the
Court still found limitations was inapplicable because the real party in interest—the
government—was the same. See id. at 401-02. Finally, Bailey did not modify, overrule,
or even mention Hallaway or O’Quinn. Thus, it dictates nothing as to what the Hallaway
doctrine requires.
The Wolfords further argue Chilkewitz v. Hyson, 22 S.W.3d 825, 828, 830 (Tex.
1999).37 But that case involved the assumed name rule (Tex. R. Civ. P. 28) and its
interaction with medical malpractice statutes, and no one here is claiming or disputing a
mistake in an assumed trade name. Chilkewitz also does not reference Hallaway or
O’Quinn, making it similarly irrelevant here.
E. Mistake, if Required, Is Either Conclusively Presumed or a Fact Issue.**
L Mistake, if Required, ls Conclusively Presumed.
In O’Quinn, the court found that the dissolved company’s partners possessed full
knowledge of the plaintiffs mistake and charged them with notice of such and of a
future amendment remedying the mistake. See 251 S.W.2d at 172. Simply put, if the
35 See Limitations-MSJ at 6-7 (emphasis by Wolfords) (citing Bailey, 332 S.W.3d at 400-01).
36 Stating that “the Baileys do not need the [relation-back] doctrine.”
37 See Limitations-MSJ at 9.
38 The Swifts do not concede that mistake is required. It is not. Hallway and O’Quinn do not
condition their holdings on a mistake, and in fact use the word only three times between them. The
Swifts raise these arguments to show that even if there is a “mistake requirement,” the summary
judgment evidence at a minimum raises fact issues on mistake, precluding judgment on this issue.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 16 of 25
law charges defendants with notice of the mistake, it is, as a matter of law, conclusively
presumed. See, cf., The Grapeshot, 76 U.S. 129, 141 (1869);°9 Vaughn v. Drennon, 324
S.W.3d 560, 562 (Tex. 2010).4°
The Wolfords claim the Swifts “judicially admitted” they made no mistake and
fully intended to sue the Wolfords as Trustees.*' This pained contortion of the Swifts’
actions defies reality. Of course the Swifts first intended to sue the Wolfords as
Trustees, because that is what they did. That does not mean this intent itself was not
mistaken. The very fact that they added new capacity allegations shows the mistake,
because if there was no mistake, there would be no need to amend. Even buying into
the argument that the Swifts are just “hedging their bets” and acting “out of an
abundance of caution,” those are not the actions of an unmistaken party, but are
conclusive evidence of the very mistake he is using that caution to avoid. See
Grapeshot, 76 U.S. at 141; Vaughn, 324 S.W.3d at 562.
Nor is it a legitimate argument to say the Swifts knew the Wolfords resided in
Trustee property at the time of suit and could have thus sued them individually at that
time. Common, public knowledge of similar facts existed in Hallaway and O’Quinn, yet
such knowledge did not preclude the amendments those plaintiffs made. In Hallaway,
public bankruptcy records would have shown that Thompson was trustee of each
railway entity, meaning from the beginning, the plaintiffs could have sued any or all of
trustee entities and let later pleadings resolve the capacity issues. Similarly in O’Quinn,
public Secretary of State records would have shown WW was a dissolved entity, again
39 Under admiralty law, presuming the necessity of credit for repairs “[w]here proof is made of
necessity for the repairs or supplies, or for funds raised to pay for them.”
4° Presuming a judgment is final for appellate purposes by mere act of judgment’s entry after trial.
4 See Limitations-MSJ (at 5, 9).
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 17 of 25
giving the plaintiff the option from the start to sue one or more capacities and resolve
the issue later.
The Hallaway and O’Quinn plaintiffs’ choice not to assert every possible capacity
against the defendants at the onset did not preclude them from changing or adding
capacities later, and the Swifts’ actions here do not either. These actions show only that
they chose incorrectly at the onset, meaning the choice itself was the mistake. In short,
the very acts of amending (which are self-contained in the Swifts’ pleadings)
conclusively prove the mistake the Wolfords demand here.
If Not Conclusively Presumed, Mistake is a Fact Issue, and the Wolfords Fail to
Raise Evidence of the Lack of Mistake.
If a “mistake” is required and cannot be conclusively presumed, then the
circumstances surrounding the mistake (or lack thereof) are clearly pertinent. Indeed,
where the plaintiff's actions evidence a mistake on his part, but the defendant denies
that the plaintiff was mistaken, the impression (i.e., intent) the plaintiff was acting under
is plainly at issue. This is a classic fact dispute, placing the case far outside of summary
judgment. The Wolfords say-so does not foreclose such fact issues, which all relate to
the mistake and whether the Wolfords acted in bad faith in hiding the true capacity they
would ultimately claim they were acting in when they employed the Workers. All of this
is highly relevant to a finding of mistake or excusing the lack of mistake.42
The summary judgment evidence plainly raises these fact issues here. The
Swifts allege that the fire started from flammable trash that the Workers threw away
42 Given that a “mistake” requirement would be novel to Texas jurisprudence, there is nothing
stopping this Court from simultaneously fashioning an exception to it where the defendant acts in
bad faith.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 18 of 25
while performing work on the Wolford’s property.‘? Publicly-available records (from the
Dallas Central Appraisal District) show this property was titled in the Trust since at least
2012.4 It was thus reasonable for the Swifts and their attorneys to look at these
records, conclude that the Workers were Trust employees, and choose to file an
employer liability suit against the Wolfords acting as Trustees based on that conclusion.
From this standpoint, only the Wolfords (and Workers) could possibly know
whether this choice was a mistake. Yet the Wolfords’ presuit response to the Swifts’
presuit demand shows they did not attempt to remedy this mistake prior to limitations.45
As was later revealed at the Rule 91a hearing, the Wolfords have chosen to
contend that, if the Workers were employees in any of the Wolfords’ capacities, it was in
their individual capacities. They did not take this position their live answers or
disclosures prior to the Swifts’ capacity amendments.*° Instead, these prior disclosures
stated that there were no potential new parties.*” Further, as the Court knows from the
multiple summary judgment motions on file, the Wolfords and Workers dispute even the
Workers’ status as employees, claiming instead that they are independent contractors.
Thus, even assuming that the Court should create a new mistake requirement
(which it should not), there are still fact issues as to:
(1) Mistaken intent at the time of filing, as shown by:
(a) public records showing the Trust, not the Wolfords, owns the Wolford
Residence;
43 See Limitations-MSJ App. Ex. C (at 2-7); Pet. 113-21.
44 L-Resp. App. Ex. 5.
45 Compare L-Resp. App. Ex. 1 (addressed to Wolfords as Trustees) with L-Resp. App. Ex. 2 (failing
to mention error in Trustee capacity allegations).
46 See L-Resp. App. Ex. 3.
47 See L-Resp. App. Ex. 3.
PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 19 of 25
(b) the absence of any evidence whatsoever showing the Swifts knew
Batson and Sauceda were exclusively employed or contracted by the
Wolfords as individuals;
(c) the act of amending the pleadings, which inherently evidences a
mistake requiring the amendment; and
(2) Defendants’ bad faith in hiding facts that would have shown the mistake after
suit was filed, as shown by:
(a) the Wolfords’ response to the Swifts’ demand;
(b) the Wolfords pre-amendment pleadings; and
(c) the Wolfords’ pre-amendment disclosures,
all of which failed to show any actions or communications by or from the
Wolfords (or Workers) to inform the Swifts that that the Workers were exclusively
employed with or contracted to the Wolfords individually, or otherwise that the
Swifts sued the Wolfords in the wrong capacity.
As traditional summary judgment movants and parties raising the issue of limitations,
the Wolfords have the burden to conclusively prove their defense, including alleged lack
of mistake. Tex. R. Civ. P. 94, 166a(c); Velsicol Chem. Corp. v. Winograd, 956 S.W.2d
529, 530 (Tex. 1997); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). These fact
issues preclude summary judgment for the Wolfords on this contrived requirement.
The Alleged “Mistake” Can Be Mistaken Intent.
The Wolfords, based on their Supreme Court briefing, may reply that mistaken
intent cannot be the “mistake” under their new requirement. And they may cite Bailey in
support. But again, the key phrase in Bailey they would rely on—‘[t]hey did not
misname or misidentify their defendant; they sued exactly whom they intended to
sue”—is dicta that by its own language applies only to an actual misnomer or
misidentification — which this case is not. More importantly, the Bailey plaintiffs did not
raise the issue of whether a mistake can be presumed from the act of amending. Simply
PL
Preview
FILED 3/22/2024 8:44 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY CAUSE NO. DC-21-06038 THOMAS E. SWIFT Ill, & IN THE DISTRICT COURT LAURYS P. SWIFT, Plaintiffs, Vv LARRY M. WOLFORD, INDIVIDUALLY, AND AS TRUSTEE OF THE LARRY AND DENISE 44TH JUDICIAL DISTRICT WOLFORD REVOCABLE TRUST; DENISE L. WOLFORD, INDIVIDUALLY, AND AS TRUSTEE OF THE LARRY AND DENISE WOLFORD REVOCABLE TRUST; WILLIAM BRADFORD BATSON; & HOMERO SAUCEDA, Defendants. DALLAS COUNTY, TEXAS PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS Plaintiffs Thomas E. Swift, Ill and Laurys P. Swift (the “Swifts”) file this Response (“Response”) to Defendants Larry M. Wolford, Individually and Denise L. Wolford, Individually’s Motion For Summary Judgment on Limitations (“Limitations-MSJ”), and William Bradford Batson’s and Homero Sauceda’s Amended Motion for Summary Judgment (the “BS-MSJ”), on Sauceda’s limitations issue only, as follows: PRELIMINARY STATEMENT The arguments made by the Wolfords were previously rejected by this Court, and have since been rejected by the Fifth Court of Appeals and Supreme Court of Texas. Further, the Wolfords chose not to move for judgment on the Swifts’ allegations that limitations was tolled due to alter ego, making this issue moot. The Limitations MSJ is a groundless, bad-faith instrument designed solely to force the Swifts to incur increased litigation costs in responding. The Court should treat it as such and summarily deny it. Further, Sauceda failed to plead and has not shown entitlement to limitations. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 1 of 25 SUMMARY JUDGMENT EVIDENCE The evidence on which this Response is based is set forth in the following filings, already on file with the Court, or filed contemporaneously with this Response: Appendix to Plaintiffs’ Motion for Authorization of Discovery of Net Worth Evidence (filed February 21, 2024) (the “NWM App.”); Appendix to Defendants Larry M. Wolford, Individually and Denise L. Wolford, Individually’s Motion for Summary Judgment on Limitations (filed March 7, 2024) (‘Limitations-MSJ App.”); Appendix to William Bradford Batson’s and Homero Sauceda’s Amended Motion for Summary Judgment (filed March 7, 2024) (the “BS-MSJ App.”); and Appendix in Support of Plaintiffs’ Response to Limitations Summary Judgment Motions (filed March 22, 2024) (the “L-Resp. App.”). Plaintiffs hereby incorporate the exhibits in these filings as set forth within the underlined citations contained in this Response. See Lance v. Robinson, 543 S.W.3d 723, 731-33 (Tex. 2018); Dousson v. Disch, 629 S.W.2d 111, 112 (Tex. App.—Dallas 1981, writ dism’d w.o.j.). The Swifts further incorporate all court files it asks the Court to take judicial notice of, as set forth herein. UNDISPUTED FACTS As detailed further in multiple summary judgment motions and responses on file with the Court, and in the Swifts’ pleadings in this matter, Plaintiffs allege that on May 14, 2019, a fire erupted from the Wolfords’ trash in the alleyway behind their property that caused massive damage to the Swifts’ neighboring home." Plaintiffs allege that the day before, two longtime workers at the property—Defendants William Batson and Homero Sauceda (the “Workers”)}—had been staining a pool deck, and threw away several rags soaked in a flammable stain oil, without complying with the oil’s clear 1 See Limitations-MSJ App. Ex. C (at 2-7); Pls.’ 4th Am. Pet. (“Pet.”) {1 13-21. For purposes of this Response, further detailed facts are not necessary as they are for the other summary judgment motions on file. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 2 of 25 warnings regarding spontaneous combustion and in violation of local ordinances governing flammable material disposal.” Plaintiffs further allege that the Wolfords are vicariously liable for the Workers actions as their employer and via agency.> On May 11, 2021, after having sent a demand to the Wolfords (as Trustees),4 and after the Wolfords’ attorney having attempted (but failing) to communicate a response on behalf of the Wolfords, the Swifts filed suit against the Wolfords, as Trustees, within the limitations period.5 The Wolfords (as Trustees) answered on June 17, 2021,8 making no mention of capacity issues or that the Swifts sued them in the wrong capacity.’ And in their initial disclosures, the Wolfords did not raise capacity issues or indicate that they, individually, were potential parties.§ Instead, they asserted there were no other potential parties.° On August 23, 2022, the Swifts later their pleadings to add the Wolfords in their individual capacities. The Wolfords responded with a Rule 91a Motion (the “91a Motion”), arguing they, as individuals, were completely new parties to the suit and limitations barred the claims against them. The Swifts replied by amending their pleadings (on March 13, 2023) and filing a response (on April 4, 2023) to explain that, under this Court’s longstanding precedents, a capacity amendment against an existing defendant does not add a new party. 2 See Limitations-MSJ App. Ex. C (at 2-7); Pet. 17 13-21. 3 See Limitations-MSJ App. Ex. C (at 21-22); Pet. 11 87-96. 4 Of the Larry and Denise Wolford Revocable Trust (the “Trust”). 5 See Limitations-MSJ App. Ex. A (at 1); L-Resp. App. Exs. 1 & 2. The Wolfords’ attempt to communicate a response to the Swifts failed due to a typo in the email address used by the Wolfords’ attorney (“jerdie@gpm-law.com” vs “jerdle@gpm-law.com”). 6 Under Tex. R. Evid. 201, the Swifts request that the Court take judicial notice of each document filed in its own record that is referenced in this Response, which they will identify by date throughout in order to satisfy the “necessary information” standard required by the Rule. 7 Nor did the Wolfords’ response to the Swifts’ demand. See L-Resp. App. Ex. 2. 8 See L-Resp. App. Ex. 3. 9 See L-Resp. App. Ex. 3. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 3 of 25 The Wolfords did not respond to the Swifts’ argument until the 91a Motion hearing on April 11, 2023, where they argued for the first time that a change in capacity relates back to the original filing, but an addition does not."° After the hearing, the Swifts immediately filed a letter brief deconstructing this surprise argument and each authority the Wolfords raised, and the Court denied the 91a Motion. The Wolfords then attempted to obtain a writ of mandamus from the Dallas Court of Appeals reversing this Court's order (by filing of a petition on April 28, 2023), which the Court of Appeals summarily denied (on May 8, 2023)." Having failed there, the Wolfords tried again at the Texas Supreme Court (by filing of a petition on June 6, 2023).'2 On July 14, 2023, the Supreme Court asked all real parties in interest for a response, which the Workers and Swifts filed (on August 14, 2023, and September 5, 2023, respectively). After considering the parties’ arguments, the Court rejected the Wolfords’ mandamus request on October 20, 2023 (and rejected the Wolfords’ motion for rehearing of such on December 15, 2023). 10 See L-Resp. App. Ex. 7. A full copy of this transcript is contained in the September 5, 2023 supplemental mandamus record filed in the Texas Supreme Court mandamus proceeding. See infra note 12. 4 Under Tex. R. Evid. 201, the Swifts request that the Court take judicial notice of each document filed in the record of the Court of Appeals of the Fifth District of Texas at Dallas for this mandamus proceeding (Cause No. 05-23-00393-CV) that is referenced in this Response, which they will identify by date throughout in order to satisfy the “necessary information” standard required by the Rule. See Cooper v. McNulty, No. 05-15-00801-CV, 2016 WL 6093999, 2016 Tex. App. LEXIS 11333, at *19 (Tex. App.—Dallas Oct. 19, 2016, no pet.). The Swifts also refer the Court to the direct link to this proceeding for this purpose: https: search.txcourts.gov/Case.aspx?cn=05-23-00393- CV&coa=coa05. 1 Under Tex. R. Evid. 201, the Swifts request that the Court take judicial notice of each document filed in the record of the Supreme Court of Texas for this mandamus proceeding (Cause No. 23- 0418) that is referenced in this Response, which they will identify by date throughout in order to satisfy the “necessary information” standard required by the Rule. See Cooper, 2016 Tex. App. LEXIS 11333, at *19. The Swifts also refer the Court to the direct link to this proceeding for this purpose: https: search.txcourts.gov/Case.aspx?cn=23-0418&coa=cossup. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 4 of 25 ARGUMENT A. The Wolfords’ Limitations Arguments Are Barred by Law of the Case. “It's like deja vu all over again.” (Credit: Baseball great Yogi Berra). The Wolfords’ limitations arguments are nothing but a cut and paste from their prior unsuccessful Rule 91a arguments before this Court, the Dallas Court of Appeals, and the Texas Supreme Court. Because the Limitations-MSJ is based on exactly the same questions of law decided against them by these courts, the law of the case doctrine bars this Court’s reconsideration of that issue in the context of summary judgment. The law of the case doctrine is based on public policy and is aimed at preventing what the Wolfords seek here: relitigation of issues already definitively decided in the same case. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The doctrine is intended to achieve uniformity of decision as well as judicial economy and efficiency by narrowing the issues in successive stages of the litigation. /d. Under the doctrine, questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. /d. Although an original proceeding is not an “appeal,” the doctrine has been held applicable to original proceedings that, like the Wolfords’ denied mandamus petitions, reached the merits. B S P Mktg. v. Standard Waste Sys., No. 05-03-00518-CV, 2004 WL 119235, 2004 Tex. App. LEXIS 727, at *3 (Tex. App.—Dallas Jan. 27, 2004, no pet.). Here, as in their thrice-failed 91a arguments, the Wolfords claim the issue of limitations can be decided as a matter of law.'? However, these legal issues remain identical to those already decided. Specifically, on April 11, 2023, this Court held a 33 The 91a Motion was based on the assertion that the Swifts’ claims against them had no basis in law, ie., that “the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 5 of 25 hearing on the 91a Motion in which they raised precisely the same legal issues as they raise in the Limitations-MSJ: that because the Swifts added them as defendants in their individual capacities, rather than substituting them for the claims against them in their capacities as trustees, the claims against them in their individual capacities do not relate back to the Swifts’ Original Petition and are time-barred. Compare: 91a Hearing argument (“their response is based on an argument that this is a change in a capacity of the parties, and so, therefore, limitations is a toll. But -- but that argument just doesn't sit with the case law. This is not a change in the capacity of the parties. This is an addition of parties”);* with Limitations-MSJ at 1 (‘[t]he allegations made in the First Amended Petition do not relate back to the Original Petition because the Swifts made no mistake in their original pleading and do not seek to substitute the Wolfords for a party originally sued”). This Court rejected the arguments in support of this proposition when it denied the 91a Motion. The Wolfords then filed a Petition for Mandamus with the Dallas Court of Appeals in which they again argued that their addition to the lawsuit in their individual capacities did not relate back to the Swifts’ original pleadings. In rejecting this Petition, the Court of Appeals stated: “[a]fter reviewing relators' petition and the record before us, we conclude that relators have failed to demonstrate entitlement to mandamus relief.”"5 In other words, the Court of Appeals reviewed the Wolfords’ Petition and determined 14 L-Resp. App. Ex. 7; see also Wolfords’ Post-Hearing 91a Letter Brief, filed in this Court on April 12, 2023: “[t]he cases Plaintiffs rely upon deal with changing an existing party’s incorrect capacity to a correct capacity, not to keeping the party in the suit under the capacity originally sued and then adding a new and different party—in the form of a new and different capacity.”); Mandamus Petition at Fifth Court of Appeals, at 14-15 (“Summary of the Argument”); Mandamus Petition at Supreme Court of Texas, at 1-2 (“Reasons to Grant Mandamus”). 45 See Memorandum Opinion of Fifth Court of Appeals dated May 8, 2023. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 6 of 25 that this Court did not abuse its discretion or act contrary to law in denying the 91a Motion."® Undeterred, the Wolfords filed a further Petition for Mandamus with the Texas Supreme Court, based on the same facts, and again arguing that the individual claims did not relate back. After the Supreme Court asked for and received responsive briefing on the issue, on October 20, 2023, it issued its order denying the Petition. The Supreme Court’s order was also a ruling against the Wolfords on the merits, as under the Texas Rules of Appellate Procedure, in orderto require responsive briefing on the Petition, the Court had to be at least “of the tentative opinion that [the Wolfords were] entitled to the relief sought or that a serious question concerning the relief requires further consideration . .. .” See Tex. R. App. P. 52.8(b). The law of the case doctrine clearly precludes this Court from considering the arguments in the Limitations-MSJ for a fourth time. All the requirements for application of the doctrine are present here: (1) The issue of whether, for limitations purposes, an amended petition adding allegations against the same human being in a different capacity relates back to the pleading in which they were originally named, is a question of law; 16 Although the Court of Appeals also noted that mandamus relief is not available when the petitioner has an adequate remedy by appeal, “[t]he Texas Supreme Court has explained that ‘[mJandamus relief is appropriate when the trial court abuses its discretion in denying a Rule 91a motion to dismiss.”" In re Disney DTC, LLC, No. 05-23-00485-CV, 2024 WL 358117, 2024 Tex. App. LEXIS 667, at *6 (Tex. App.—Dallas Jan. 31, 2024, orig. proceeding) (quoting In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding)). Accordingly, the Wolfords’ Mandamus Petition was denied by the Court of Appeals on the merits, not because the Wolfords had an adequate remedy by appeal. See also In re BSP Mktg. Incorporation, No. 05-03-00496-CV, 2003 WL 1827798, 2003 Tex. App. LEXIS 3004, at *1 (Tex. App.—Dallas Apr. 9, 2003, orig. proceeding), a mandamus ruling found by the Dallas Court of Appeals to be a decision on the merits in the later B S P appeal (see 2004 Tex. App. LEXIS 727, at *3). PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 7 of 25 (2) The issue has been decided on the merits against the Wolfords by this Court, the Court of Appeals, and a court of last resort—the Texas Supreme Court; and (3) The issues presented in the Limitations-MSJ, as well as their supporting facts and arguments, are not only substantially the same as, but identical to, those presented in the failed 91a Motion and subsequent Mandamus Petitions.” See In re Guardianship of Cantu de Villarreal, 330 S.W.3d 11, 20-21 (Tex. App.— Corpus Christi 2010, no pet.).18 The Wolfords took three swings at the same issue and struck out. They are not entitled to a fourth swing under the guise of a summary judgment motion. B. The Wolfords Failed to Move for Summary Judgment on the Swifts’ Allegations of Tolling of Limitations by Alter Ego. Not only is the Limitations-MSJ barred under law of the case, it is moot, because even if this Court, the Dallas Court of Appeals, and the Texas Supreme Court, all suddenly changed course and fully accepted the Wolfords’ arguments, the Swifts still plead that the Trust, and Wolfords acting as Trustees, are the alter egos of the Wolfords (and vice versa).'? The statute of limitations against a party is tolled on the filing of a lawsuit against that party’s alter ego until final judgment in the lawsuit. See Matthews Constr. Co. v. Rosen, 796 S.W.2d 692, 693, 694 (Tex. 1990); Gentry v. Credit Plan Corp., 528 S.W.2d 571, 575 (Tex. 1975). Because the Wolfords do not challenge the 17 Compare Limitations-MSJ (at 1-12) with 91a Motion and Wolford Letter Brief on file with this Court, 91a Hearing Transcript (see L-Resp. App. Ex. 7), Mandamus Petition at Fifth Court of Appeals, at 11-36, Mandamus Petition at Texas Supreme Court, at 1-20, and L-Resp. App. Ex. 8 (table comparing arguments in these proceedings). Compare also Limitations-MSJ_Appx. with mandamus records from indicated proceedings. 18 Absent new facts, analysis, or argument, appellate court did not need to reconsider issues resolved in previous mandamus. 19 Pet. (J, 1-2, 6, 83-86. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 8 of 25 Swifts’ allegations that the Trust and Trustees are the alter ego of the Wolfords, the Court should deny the Limitations-MSJ as moot. Even assuming the Wolfords’ refusal to move for summary judgment on alter ego is not fatal, the Court may still satisfy itself that there is adequate summary judgment evidence creating fact issues on (if not conclusively proving) alter ego: a The Wolford Residence is the family home for the Wolfords that they built and have resided in since 2001;7° The Wolford Residence was originally owned by the Wolfords, individually, and was transferred by them to the Trust in 2012;2' The Trust has no assets other than the Wolford Residence;?? The Wolfords, acting as individuals, employed workers to perform work on Trust property;?2 The Trust document shows that the Wolfords are both the Trust settlors / creators and its current beneficiaries, the Wolfords retain sole discretion to revoke the Trust at any time, and the Trust has no separate existence from the Wolfords during their lifetimes;24 The Trust never had separate bank accounts or financial documents (such as tax returns, income statements, or balance sheets); 20 NWM App. Ex. 9 (D. Wolford Dep. 13:14—25, 14:18-24, 22:23-23:4). 21 NWM App. Ex. 9 (D. Wolford Dep. 22:23-23:4, 24:14-25:3); 22 NWM App. Ex. 9 (D. Wolford Dep. 35:17—23). 23 NWM App. Ex. 9 (D. Wolford Dep. 54:14-18, 54:20-22). 24 L-Resp. App. Ex. 4. 25 NWM App. Ex. 22. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 9 of 25 g. Outsiders (including Batson and Sauceda) never differentiated between the Wolfords acting as Trustees and as individuals;76 and h. Critically, the Wolfords would pay expenses for Trust property or work done for the Trust property (including Batson’s work and expenses) with individual personal funds and accounts, or accounts linked with the Wolfords’ dentistry business.” This evidence conclusively shows that the Trust is a mere tool or business conduit of the Wolfords for their ownership of the Wolford Residence, with no real separate existence, and there is such a “unity between the [Trust] and the [Wolfords individually] that the separateness of the [Trust] has ceased’ and holding only the [Trust] or individual liable would result in injustice.” See Nugent v. Estate of Ellickson, 543 S.W.3d 243, 266-67 (Tex. App.—Houston [14th Dist.] 2018, no pet.); W. Hous. Airport Corp. v. Sw. Invs., No. 01-99-00144-CV, 2001 Tex. App. LEXIS 2827, at **15-16 (Tex. App.— Houston [1st Dist.] Apr. 26, 2001, pet. denied); see also Moran v. Pardo (In re Life Partners Holdings, Inc.), No. 4:15-cv-905-O, 2017 U.S. Dist. LEXIS 229247, at **4-5, 30-31 (N.D. Tex. Dec. 29, 2017);; In re Lawler, 47 B.R. 673, 675 (Bankr. N.D. Tex. 1985). This includes the injustice of a potentially uncollectible judgment against the Trust (due to its only asset possibly being protected from execution under Texas’ homestead laws) while the alter ego (i.e., the Wolfords) go free. See Mancorp, Inc. v. Culpepper, 836 S.W.2d 844, 846 (Tex. App.—Houston [1st Dist.] 1992, no writ); In re Great S. Life Ins. Co. Sales Practices Litig., No. 1214, 1999 U.S. Dist. LEXIS 23100, at **15-18 (N.D. Tex. Sept. 15, 1999). 26 NWM App. Ex. 8 (Batson Dep. 24:1-8); NWM App. Ex. 6 (Sauceda Dep. 15:1-12). 27 NWM App. Ex. 9 (D. Wolford Dep. 44:8—45:20, 46:4—-11, 64:4-23, 64:25-65:17). PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 10 of 25 C. The Hallaway Doctrine Does Not Distinguish Between _a Change and a Addition of Capacity. L Hallaway Looked Back to Where the Plaintiff Added Capacity. In Hallaway v. Thompson, 226 S.W.2d 816, 817 (Tex. 1950), a railway employee sued his railway employer. 226 S.W.2d at 817. He initially sued “Guy A. Thompson, Trustee for the St. Louis, Brownsville & Mexico Railway Company (“Mexico Company”), but later amended his pleadings (in his second amended petition) to add Thompson’s capacity as “Trustee for the San Antonio, Uvalde & Gulf Railroad Company” (“Gulf Company’). /d. He eventually amended to sue Thompson solely as Gulf Company Trustee. /d. at 817-18. In other words, the employee did not at first change the prior capacity allegation. Rather, he continued to maintain suit against Thompson in the prior capacity. Thompson asserted limitations in his capacity as Gulf Company trustee, and both the trial and appellate court agreed. /d. at 818. But the Supreme Court unanimously reversed. /d. at 823. Justice Hart expressly looked back to the first pleading adding a new capacity allegation: the second amended petition, with both alleged capacities. /d. at 818-19.28 He then went into an extensive analysis of prior authorities addressing the issue, in particular, Boyd v. United States Mortg. & Tr. Co., 79 N.E. 999, 1000-01 (N.Y. 1907). In Boyd, New York’s highest court considered whether a capacity amendment brought in “a new party in the fullest sense of that term -- that is to say, a defendant who had never before been brought into court in this action for any purpose.” Hallaway, 226 S.W.2d at 822 (citing Boyd, 79 N.E. at 1001) (emphasis added). 28 The Wolfords breeze over this critical fact as if it means nothing. See Limitations-MSJ at 8. In reality, this fact is fatal to their entire argument. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 11 of 25 Justice Hart agreed that the amendment did “not really bring in a new party defendant” to the lawsuit. /d. at 822-23 (citing Boyd, 79 N.E. at 1001) (emphasis added). He also agreed that a proper purpose for such an amendment would be to allow a proper judgment against the party sued: [T]he mortgage company was served originally and nothing was gained in having it before the court by the new service, but for the proper entry of the judgment against it the designation was upon motion changed by striking out the words “as substituted trustee[.”] Id. at 822-23 (citing Boyd, 79 N.E. at 1001) (emphasis added). He then concluded, holding that a capacity amendment against an existing defendant did not add a new defendant: [The relation-back statute] expressly provides that an amendment to a pleading shall not be subject to a plea of limitation where the amendment is not wholly based on or grows out of a new, distinct or different transaction or occurrence. Of course, this rule would not apply to an entirely new defendant who is brought in for the first time by an amendment. However, we think it can be fairly applied under the facts in this case where the amendment names the same defendant, but changes the capacity in which he is sued. Id. at 823 (emphasis added). Hallaway’s facts belie the Wolfords’ entire argument. If, as the Wolfords contend, an addition is barred but not a change, a later amendment from an addition to a change would not have saved the Hallaway plaintiffs claims. Instead, the addition was wrong from the start, and the Supreme Court would have had no choice but to affirm the dismissal. The Court however made no distinction between the earlier addition and later change, and instead focused on the defendant’s overall presence in the lawsuit, noting he was “at all times fully cognizant of the facts, m4 could not have been misled as to the basis of the plaintiffs suit by the allegations of the original petition,” and placed at no “disadvantage in obtaining relevant evidence to defend the suit.” See id. at 820-21 (emphasis added). This holding makes perfect sense because the same individual PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 12 of 25 defendant would be defending against the same conduct regardless. It also makes common sense because an addition is itself a change.”° Further, Justice Hart did not require or refer to a “mistake” in his actual holding, belying the Wolfords’ argument that the Ha/laway doctrine requires a threshold mistake by the Plaintiff. See id. at 823. The Wolfords further argue that the key operative fact in Hallaway was that “the defendant was the only party who could have known the correct capacity.”2° But nowhere in Hallaway did Justice Hart write that the defendant needed to possess exclusive knowledge of correct capacity. Indeed, the exact portion of Hallaway the Wolfords cite in support of this show only that this knowledge must be “peculiarly” (i.e., not exclusively, but distinctively)" with the defendant. See id. at 820. The opinion plainly leaves open the door that the plaintiff could have known the correct capacity was a possible choice, but chose incorrectly, and was later entitled to rectify that mistake. L O’Quinn Expressly Allowed Added & Alternative Capacity. In O’Quinn v. Scott, 251 S.W.2d 168, 169-70 (Tex. App.—Waco 1952, writ ref'd), the plaintiff first filed suit against the individual partners of W.W. Scott Construction Co. (‘WW’). The plaintiff later sued WW “as an additional defendant,” including “in the alternative’ allegations that if the partners were not liable, WW was, and that if WW “no 29 In effect, the Supreme Court here disposed of the legal fiction of separate capacities = separate parties for limitations purposes, and explained why. The Supreme Court plainly has the power to create or dispose of common-law legal fictions as warranted. See, cf., Bounds v. Caudle, 560 S.W.2d 925, 926, 927 (Tex. 1977) (disregarding legal fiction of a single capacity within marriage in allowing exception to common-law interspousal tort immunity doctrine, prior to that doctrine’s full abolishment). 3° See Limitations-MSJ at 8, 10. 31 See, e.g., Oxford English Dictionary (defining “peculiarly” as “[i]n a way which creates a distinction from others; particularly, especially; to a remarkable or unusual degree”), available at https: www.oed.com/search/dictionary/?scope=Entries&q=peculiarly. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 13 of 25 longer existed,” the partners were liable as WW’s trustees. /d. The partners, in their trustee capacities, argued limitations and the trial court granted summary judgment on those grounds. /d. The court of appeals reversed. /d. at 172. The court recognized the mistake in the initial capacity allegations, but nevertheless found that the defendants knew about the mistake and were thus charged with notice that claims could later be filed against them in their correct capacities: As trustees of the dissolved corporation W. W. Scott and his associates knew at the time they were brought into court in response to appellants’ original petition that appellants were mistaken in their allegations to the effect that the construction company was a partnership when the cause of action therein declared upon arose, and they were charged with notice that appellants could and in all reasonable probability would amend their pleadings so as to sue them in their representative capacity as trustees of the dissolved corporation when the true facts in that regard were ascertained. Id. In sum, the court found limitations was inapplicable because the defendants were on notice that the plaintiff would later allege claims against them in a different capacity. /d. (citing Hallaway, 226 S.W.2d 816) It is telling that the Wolfords continue to completely ignore O’Quinn. Indeed, their ignorance of this opinion after the Swifts’ heavy reliance on it throughout the Supreme Court’s proceedings is perhaps the biggest tell that the Limitations-MSJ is frivolous and brought in bad faith. O’Quinn is fatal to their “change” versus “addition” distinction because the Supreme Court, by refusing the writ in this case,°? allowed the amended, “alternative” capacity additions to stand and relate back. O’Quinn is also the death knell for any argument that the amended allegation must correct a mistake in the original pleading (or that the plaintiff must otherwise choose between capacities). If the Texas 32 See Tex. R. App. P. 56.1(c); Ferreira v. Butler, 575 S.W.3d 331, 335 n.29 (Tex. 2019) (“we refused the application for writ of error, giving the court's opinion the precedential value of one of our own”). PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 14 of 25 Supreme Court wanted to place such requirements on Texas plaintiffs, it would have accepted the writ and sent the case back with instructions to eliminate the prior “mistaken” capacity allegation from the pleading. The fact that it did the opposite means the Supreme Court decided that additional capacity allegations are acceptable. Simply put, Hallaway and O’Quinn are controlling and fatal to the Limitations- MSJ. The Wolfords attempt to argue out of these clear and binding holdings using two somewhat related pathways: (1) generalized misnomer and misidentification law; and (2) a brand-new “mistake” requirement for Hallaway and O’Quinn. As shown below, neither of these pathways have merit, and the Court should waste no time in doing what every other court has done — reject the Wolfords’ arguments. D. Misnomer and Misidentification Are Inapposite. While the Swifts did use three lines of their response to the Rule 91a Motion to analogize misnomer cases,*° Hallaway and O’Quinn, as Texas Supreme Court precedents, clearly are an “extension” far beyond the normal reach of misnomer or misidentification, and stand on their own without going back to those general standards.** Any alleged mistake requirement of misnomer / misidentification is inapplicable and cannot be used to graft a similar requirement on the Hallaway doctrine. The primary and almost exclusive authority the Wolfords argue on this point— Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011)—is completely distinguishable. The Wolfords argue that in Bailey, the Court “held there is no misnomer or misidentification when a party ‘sued exactly whom they intended to 33 See Limitations-MSJ App. Ex. G (at 7). 34 Indeed, Dorsaneo’s Litigation Guide treats them as separate standards. See Dorsaneo, 7 Tex. Litigation Guide § 111.02[4][d] & [e]. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 15 of 25 sue."*5 But that is not Bailey's controlling language or holding. Bailey instead involved a motion under the Tort Claims Act to cause the plaintiff to substitute in the government entity who employed the original defendant. See id. at 396-99; see also Tex. Civ. Prac. & Rem. Code § 101.106(f). In other words, the plaintiff sought a substitution using a statutory device expressly created for such purpose, meaning the statement the Wolfords hang their hat on here is dicta. See Bailey, 332 S.W.3d at 401.°° Even so, the Court still found limitations was inapplicable because the real party in interest—the government—was the same. See id. at 401-02. Finally, Bailey did not modify, overrule, or even mention Hallaway or O’Quinn. Thus, it dictates nothing as to what the Hallaway doctrine requires. The Wolfords further argue Chilkewitz v. Hyson, 22 S.W.3d 825, 828, 830 (Tex. 1999).37 But that case involved the assumed name rule (Tex. R. Civ. P. 28) and its interaction with medical malpractice statutes, and no one here is claiming or disputing a mistake in an assumed trade name. Chilkewitz also does not reference Hallaway or O’Quinn, making it similarly irrelevant here. E. Mistake, if Required, Is Either Conclusively Presumed or a Fact Issue.** L Mistake, if Required, ls Conclusively Presumed. In O’Quinn, the court found that the dissolved company’s partners possessed full knowledge of the plaintiffs mistake and charged them with notice of such and of a future amendment remedying the mistake. See 251 S.W.2d at 172. Simply put, if the 35 See Limitations-MSJ at 6-7 (emphasis by Wolfords) (citing Bailey, 332 S.W.3d at 400-01). 36 Stating that “the Baileys do not need the [relation-back] doctrine.” 37 See Limitations-MSJ at 9. 38 The Swifts do not concede that mistake is required. It is not. Hallway and O’Quinn do not condition their holdings on a mistake, and in fact use the word only three times between them. The Swifts raise these arguments to show that even if there is a “mistake requirement,” the summary judgment evidence at a minimum raises fact issues on mistake, precluding judgment on this issue. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 16 of 25 law charges defendants with notice of the mistake, it is, as a matter of law, conclusively presumed. See, cf., The Grapeshot, 76 U.S. 129, 141 (1869);°9 Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex. 2010).4° The Wolfords claim the Swifts “judicially admitted” they made no mistake and fully intended to sue the Wolfords as Trustees.*' This pained contortion of the Swifts’ actions defies reality. Of course the Swifts first intended to sue the Wolfords as Trustees, because that is what they did. That does not mean this intent itself was not mistaken. The very fact that they added new capacity allegations shows the mistake, because if there was no mistake, there would be no need to amend. Even buying into the argument that the Swifts are just “hedging their bets” and acting “out of an abundance of caution,” those are not the actions of an unmistaken party, but are conclusive evidence of the very mistake he is using that caution to avoid. See Grapeshot, 76 U.S. at 141; Vaughn, 324 S.W.3d at 562. Nor is it a legitimate argument to say the Swifts knew the Wolfords resided in Trustee property at the time of suit and could have thus sued them individually at that time. Common, public knowledge of similar facts existed in Hallaway and O’Quinn, yet such knowledge did not preclude the amendments those plaintiffs made. In Hallaway, public bankruptcy records would have shown that Thompson was trustee of each railway entity, meaning from the beginning, the plaintiffs could have sued any or all of trustee entities and let later pleadings resolve the capacity issues. Similarly in O’Quinn, public Secretary of State records would have shown WW was a dissolved entity, again 39 Under admiralty law, presuming the necessity of credit for repairs “[w]here proof is made of necessity for the repairs or supplies, or for funds raised to pay for them.” 4° Presuming a judgment is final for appellate purposes by mere act of judgment’s entry after trial. 4 See Limitations-MSJ (at 5, 9). PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 17 of 25 giving the plaintiff the option from the start to sue one or more capacities and resolve the issue later. The Hallaway and O’Quinn plaintiffs’ choice not to assert every possible capacity against the defendants at the onset did not preclude them from changing or adding capacities later, and the Swifts’ actions here do not either. These actions show only that they chose incorrectly at the onset, meaning the choice itself was the mistake. In short, the very acts of amending (which are self-contained in the Swifts’ pleadings) conclusively prove the mistake the Wolfords demand here. If Not Conclusively Presumed, Mistake is a Fact Issue, and the Wolfords Fail to Raise Evidence of the Lack of Mistake. If a “mistake” is required and cannot be conclusively presumed, then the circumstances surrounding the mistake (or lack thereof) are clearly pertinent. Indeed, where the plaintiff's actions evidence a mistake on his part, but the defendant denies that the plaintiff was mistaken, the impression (i.e., intent) the plaintiff was acting under is plainly at issue. This is a classic fact dispute, placing the case far outside of summary judgment. The Wolfords say-so does not foreclose such fact issues, which all relate to the mistake and whether the Wolfords acted in bad faith in hiding the true capacity they would ultimately claim they were acting in when they employed the Workers. All of this is highly relevant to a finding of mistake or excusing the lack of mistake.42 The summary judgment evidence plainly raises these fact issues here. The Swifts allege that the fire started from flammable trash that the Workers threw away 42 Given that a “mistake” requirement would be novel to Texas jurisprudence, there is nothing stopping this Court from simultaneously fashioning an exception to it where the defendant acts in bad faith. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 18 of 25 while performing work on the Wolford’s property.‘? Publicly-available records (from the Dallas Central Appraisal District) show this property was titled in the Trust since at least 2012.4 It was thus reasonable for the Swifts and their attorneys to look at these records, conclude that the Workers were Trust employees, and choose to file an employer liability suit against the Wolfords acting as Trustees based on that conclusion. From this standpoint, only the Wolfords (and Workers) could possibly know whether this choice was a mistake. Yet the Wolfords’ presuit response to the Swifts’ presuit demand shows they did not attempt to remedy this mistake prior to limitations.45 As was later revealed at the Rule 91a hearing, the Wolfords have chosen to contend that, if the Workers were employees in any of the Wolfords’ capacities, it was in their individual capacities. They did not take this position their live answers or disclosures prior to the Swifts’ capacity amendments.*° Instead, these prior disclosures stated that there were no potential new parties.*” Further, as the Court knows from the multiple summary judgment motions on file, the Wolfords and Workers dispute even the Workers’ status as employees, claiming instead that they are independent contractors. Thus, even assuming that the Court should create a new mistake requirement (which it should not), there are still fact issues as to: (1) Mistaken intent at the time of filing, as shown by: (a) public records showing the Trust, not the Wolfords, owns the Wolford Residence; 43 See Limitations-MSJ App. Ex. C (at 2-7); Pet. 113-21. 44 L-Resp. App. Ex. 5. 45 Compare L-Resp. App. Ex. 1 (addressed to Wolfords as Trustees) with L-Resp. App. Ex. 2 (failing to mention error in Trustee capacity allegations). 46 See L-Resp. App. Ex. 3. 47 See L-Resp. App. Ex. 3. PLAINTIFFS’ RESPONSE TO LIMITATIONS SUMMARY JUDGMENT MOTIONS - Page 19 of 25 (b) the absence of any evidence whatsoever showing the Swifts knew Batson and Sauceda were exclusively employed or contracted by the Wolfords as individuals; (c) the act of amending the pleadings, which inherently evidences a mistake requiring the amendment; and (2) Defendants’ bad faith in hiding facts that would have shown the mistake after suit was filed, as shown by: (a) the Wolfords’ response to the Swifts’ demand; (b) the Wolfords pre-amendment pleadings; and (c) the Wolfords’ pre-amendment disclosures, all of which failed to show any actions or communications by or from the Wolfords (or Workers) to inform the Swifts that that the Workers were exclusively employed with or contracted to the Wolfords individually, or otherwise that the Swifts sued the Wolfords in the wrong capacity. As traditional summary judgment movants and parties raising the issue of limitations, the Wolfords have the burden to conclusively prove their defense, including alleged lack of mistake. Tex. R. Civ. P. 94, 166a(c); Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). These fact issues preclude summary judgment for the Wolfords on this contrived requirement. The Alleged “Mistake” Can Be Mistaken Intent. The Wolfords, based on their Supreme Court briefing, may reply that mistaken intent cannot be the “mistake” under their new requirement. And they may cite Bailey in support. But again, the key phrase in Bailey they would rely on—‘[t]hey did not misname or misidentify their defendant; they sued exactly whom they intended to sue”—is dicta that by its own language applies only to an actual misnomer or misidentification — which this case is not. More importantly, the Bailey plaintiffs did not raise the issue of whether a mistake can be presumed from the act of amending. Simply PL