Brown v. Shores , 2002 Tex. App. LEXIS 2940 ( 2002 )

MAJORITY OPINION

JOHN S. ANDERSON, Justice.

Appellant Allison Brown appeals a take-nothing summary judgment in favor of appellee Paul Shores. We affirm.

PROCEDURAL BACKGROUND

This personal injury case arises from an automobile accident that allegedly occurred February 12, 1998. On January 23, 2000, Brown filed an original petition and requested service at that time. The citation listed “15342 East Barber Circle, Houston, Texas 77079,” as Shores’ address. According to the constable’s return, filed February 22, 2000, four attempts at service in February were unsuccessful.

On July 31, 2000, Brown filed a motion for substituted service.¹ Brown again sought service on Shores at “15342 East Barber Circle, Houston, Texas 77079” (emphasis added). The trial court granted the motion on August 10, 2000.

On September 19, 2000, Brown filed an amended motion for substituted service, this time requesting service at “15342 East Barbara Circle, Houston, Texas 77079” (emphasis added). The court granted the motion on September 19, 2000. Shores was served September 27, 2000.

Shores answered. He did not plead limitations or lack of due diligence in service.² He did, however, file a motion for summary judgment alleging limitations had expired and Brown’s service efforts lacked due diligence. The motion was set for hearing March 19, 2001. Brown filed her response March 23, 2001. On March 26, 2001, the trial court granted the motion. The order states the court heard the motion the same day.

DISCUSSION

In a single issue, Brown argues her summary judgment proof created a fact issue on whether she exercised due diligence in procuring the issuance and service of citation, and therefore the trial court erred when it granted summary judgment on limitations grounds. To answer this issue, we must first determine what summary judgment proof was properly before the court and then determine whether that proof conclusively proved limitations barred her suit.

1. What summary judgment proof was properly before the court? The summary judgment hearing was set for March 19, 2001. According to the final summary judgment order, the court heard the motion March 26, 2001. Brown filed her response by after hours filing March 23, 2001. “Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.” Tex.R. Civ. P. 166a(c). Regardless of whether the hearing was March 19 or March 23, Brown’s response was untimely.³ Although she sought leave of court to file an out-of-time response, there is no order in the record to indicate the court granted leave.

When there is no order in the record granting leave for a late filing by the non-movant, we must presume the trial court did not consider the filing in rendering the take-nothing summary judgment. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996) (citing INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985)); Hubert v. Ill. State Assistance Comm’n, 867 S.W.2d 160, 162 n. 1 (Tex.App.-Houston [14th Dist.] 1993, no writ). The contentions Brown raises in her appeal and the proof to which she points were therefore not before the trial court. See Thibodeaux v. Spring Woods Bank, 757 S.W.2d 856, 858-59 (Tex.App.-Houston [14th Dist.] 1988, no writ). Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. Tex.R. Civ. P. 166a(c); Thibodeaux, 757 S.W.2d at 859. We therefore consider only Shores’ summary judgment proof.

2. Did Shores’ summary judgment proof conclusively establish limitations had expired on Brown’s claim? The movant for summary judgment has the burden of showing there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non-movant. Id. at 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in her favor. Id. at 549. When a movant seeks summary judgment because limitations expired, it is the movant’s burden to conclusively establish the bar of limitations. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975) (per curiam).

Brown’s cause of action accrued February 12, 1998. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998) (stating cause of action generally accrues, and statute of limitations begins to run, when facts come into existence that authorize claimant to seek judicial remedy); Garza v. Williams Bros. Constr. Co., 879 S.W.2d 290, 292 (Tex.App.-Houston [14th Dist.] 1994, no writ) (setting date of accident as starting point for limitations period). Limitations expired February 12, 2000. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2002) (providing person must bring suit for personal injury no later than two years after day cause of action accrues).

Brown filed her suit January 23, 2000, before limitations expired. The rule, however, is a plaintiff must file a lawsuit and perfect service before limitations expire. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990) (stating mere filing of suit will not interrupt running of limitations). If a plaintiff files suit before limitations, but effects service after limitations, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990) (per curiam). To obtain summary judgment on the grounds an action was not served within the applicable limitations period, the movant must show that, as a matter of law, diligence was not used to effectuate service. Id. Lack of diligence may be shown as a matter of law based on unexplained lapses of time between the filing of the petition and service on the defendant. Id. Thus, when a defendant has affirmatively pleaded the defense of limitations and has shown, with summary judgment proof, that plaintiff failed to timely serve the defendant, the burden shifts to the plaintiff to explain the delay. Murray, 800 S.W.2d at 830. Plaintiffs claim will be barred in the absence of some evidence explaining the delay in service of citation. See id.

Here, Shores’ summary judgment proof reflects an unexplained lapse of slightly more than five months between the constable’s February 22 return of Brown’s original petition citation, un-served, and Brown’s July 31 motion for substituted service. Because Brown’s summary judgment response was not properly before the trial court, she did not explain this delay in serving citation on Shores. This unexplained delay between the return of Brown’s citation unserved and the later service on Shores is, as a matter of law, not due diligence in procuring citation and effecting service. See Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.-Corpus Christi 1991, no writ) (holding unexplained delay of five months after the expiration of limitations not due diligence in procuring issuance and service of citation). Accordingly, Brown’s suit was barred by limitations, and we overrule Brown’s sole appellate issue.

We affirm the judgment of the trial court.

SCOTT BRISTER, C.J., concurring.

1 . See Tex.R. Civ. P. 106(b)(1).

2 . Limitations is an affirmative defense that is waived if not pleaded. See Tex.R. Civ. P. 94 (listing statute of limitations as affirmative defense that shall be set forth in pleading to preceding pleading); Moore v. Rotello, 719 S.W.2d 372, 380 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.) (stating general limitations statute is procedural and may be waived if not affirmatively pleaded). Brown, however, did not object in the trial court to Shores’ failure to plead limitations, and she therefore cannot address that failure for the first time in this court. See Webster v. Thomas, 5 S.W.3d 287, 289 n. 1 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding because appellant’s response did not bring failure to plead limitations to trial court's attention, appellant could not raise issue on appeal); Bazile v. Aetna Cas. and Sur. Co., 784 S.W.2d 73, 74 (Tex.App.-Houston [14th Dist.] 1989, writ dism’d) (stating appellant waived point by failing, at summary judgment hearing, to object to appellee’s failure to plead limitations).

3 . In Home v. Charter National Insurance Co., the court of appeals accepted the date of the hearing recited in the summary judgment order despite the appellee’s representation the hearing was held on an earlier date. 614 S.W.2d 182, 184 (Tex.Civ.App.-Fort Worth 1981, writ ref'd n.r.e.)