Keana Prescod and Shelley Harte v. Suzannah Tkach

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00162-CV
___________________________
KEANA PRESCOD AND SHELLEY HARTE, Appellants
V.
SUZANNAH TKACH, Appellee
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 18-10539-393
Before Kerr, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellants Keana Prescod and Shelley Harte belatedly served their suit on
Appellee Suzannah Tkach, which led the trial court to render summary judgment on
the ground of the statute of limitations. Appellants challenge the summary judgment
on three fronts.
First, Appellants contend that they were diligent in attempting to serve Tkach.
We hold that the multiple unexplained gaps in the timeline of Appellants’ attempts at
service show a lack of diligence as a matter of law.
Second, Appellants assert that the trial court abused its discretion by declining to
extend limitations under the authority granted by the Texas Supreme Court’s emergency
orders concerning the COVID-19 pandemic. But by the time of the first reported case
of COVID in Texas, the period of limitations had long since passed, and Appellants
had already thoroughly demonstrated a lack of diligence in pursuing service. We hold
that the trial court did not abuse its discretion by declining to extend limitations.
Third, Appellants submit that the trial court could not rightly grant summary
judgment on the basis of Tkach’s limitations defense because she did not timely disclose
that defense in response to requests for disclosure. We hold that Tkach did not forfeit
the defense by failing to disclose it in discovery.
Hence, we affirm.
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I. BACKGROUND
On November 23, 2016, Appellants were involved in a collision with Tkach.
Appellants filed suit on November 9, 2018, just shy of the two-year statute of
limitations.
Over the next 626 days, Appellants periodically attempted to obtain service of
process using two servers. Service was at last achieved through Facebook on July 27,
2020.
On November 13, 2020, Tkach filed an amended answer in which she pleaded
the statute of limitations as a defense. On the same day, Tkach moved for summary
judgment on limitations grounds. Tkach argued that because Appellants did not
exercise diligence in achieving service after limitations had expired, the suit should be
disposed as a matter of law.
Appellants filed a response with evidence outlining their efforts at diligent service
through Appellants’ counsel Donald Mackenzie and Paul Cross:
• On November 13, 2018, citation issued for Tkach’s last known address on
Countryside Lane in Carrollton.
• Six weeks later, on December 27, 2018, Cross instructed his process server Texas
State Service (TSS) to pick up the citation.
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• On January 11, 2019, TSS reported that the Countryside address was not Tkach’s
residence. Mackenzie searched for Tkach on TLO, which is a personal records
database, but he found no new information about her address.
• Nearly two months later, on March 6, 2019, Cross inquired with TSS about its
efforts at service, and TSS replied that it had unsuccessfully attempted service
that day.
• On March 20, 2019, Cross hired Professional Civil Process (PCP) to obtain
service.
• On March 22, 2019, TSS reported that it had attempted service several times in
March, and though the lights were on at the house, there was no answer at the
door, and the vehicles at the house were registered to people other than Tkach.
• On March 25, 2019, Mackenzie used TLO to research the license plates of the
vehicles at the Countryside address. He found that none of them belonged to
Tkach. Also, Mackenzie ran a report through another search service called
Accurint, but he found no new information on Tkach.
• In April 2019, Mackenzie told the process server to ask neighbors whether Tkach
still lived at the Countryside address. The neighbors confirmed that she did.
• During this time, Mackenzie performed searches on TLO, Google, and
Facebook “every week,” but he found nothing.
4
• In May 2019, Mackenzie instructed his staff to seek substitute service, but he
decided against substitute service when he found a link on Google indicating that
Tkach was a student at Baylor University.
• Over the next six months, Mackenzie conducted weekly searches on TLO,
Google, and Facebook. At some point he also contacted a process server in
Waco, who informed Mackenzie that Tkach had an address at a student
government building at Baylor, but that this address was not an acceptable
address for service, and that he was not willing to attempt service for fear of
Baylor police citing him for trespass.
• On October 4, 2019, Cross obtained a new citation.
• In October 2019, Mackenzie found on TLO that Tkach still lived at the
Countryside address. Mackenzie and Cross arranged for PCP to make multiple
service attempts on October 12, 22, and 29, and on November 11. All the
attempts were unsuccessful.
• In November 2019, Cross informed Mackenzie that a Facebook search had
confirmed that Tkach was a Baylor student.
• On November 12, 2019, Cross requested another round of attempts at service
from PCP.
• On December 9, 2019, PCP reported to counsel that it had been unable to serve
Tkach at the Countryside address.
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• On December 16, 2019, Mackenzie instructed Cross to have PCP attempt service
at the Countryside address over the Christmas holiday, when Tkach would likely
be there.
• On December 21, 2019, PCP attempted service, but construction workers
informed PCP that the Tkach family no longer lived there and that the house
was vacant.
• Over the next three months, Mackenzie continued to search TLO, Google,
Facebook, and county court records for information on Tkach.
• In March 2020, the COVID pandemic led PCP to suspend its efforts at service.
• In either May or June 2020, Cross informed Mackenzie of a new law allowing
service of process through social media.
• On July 27, 2020, counsel accomplished service through Facebook.
Based on this evidence, the trial court granted summary judgment on limitations
grounds.
II. STANDARD OF REVIEW
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable
to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
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(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant
is entitled to summary judgment on an affirmative defense if the defendant conclusively
proves all elements of that defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–
09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant must
present summary judgment evidence that conclusively establishes each element of the
affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
A trial court abuses its discretion when its ruling is arbitrary and unreasonable,
made without regard for guiding legal principles or supporting evidence. In re State Farm
Mut. Auto. Ins. Co., 629 S.W.3d 866, 872 (Tex. 2021) (orig. proceeding).
III. LACK OF DILIGENCE IN OBTAINING SERVICE
In their first, fourth, and sixth issues, Appellants challenge the trial court’s
conclusion that they were not diligent in obtaining service of process. Appellants
contend that the record reflects their persistence in attempting service over the twenty
months between the filing of suit and the date that service was achieved.
“A suit for personal injuries must be brought within two years from the time the
cause of action accrues.” Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (citing Tex.
Civ. Prac. & Rem. Code Ann. § 16.003(a)). “But a timely filed suit will not interrupt the
running of limitations unless the plaintiff exercises due diligence in the issuance and
service of citation.” Id. “If service is diligently effected after limitations has expired,
the date of service will relate back to the date of filing.” Id.7
“In a summary judgment proceeding, once the defendant proves that service
occurred after limitations expired, the burden shifts to the plaintiff to explain the delay
and to raise a fact question regarding diligence of service.” Flanigan v. Nekkalapu, 613
S.W.3d 361, 364 (Tex. App.—Fort Worth 2020, no pet.). To raise a fact issue on
diligence, the plaintiff must present evidence regarding the efforts that were made to
serve the defendant and explain every lapse in effort or period of delay. Ashley v.
Hawkins, 293 S.W.3d 175, 179 (Tex. 2009) (quoting Proulx, 235 S.W.3d at 216).
Generally, the question of the plaintiff’s diligence in effecting service is one of fact,
though it may be determined as a question of law “when one or more lapses between
service efforts are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216.
If the plaintiff’s explanation raises a fact issue concerning diligence, the burden shifts
back to the defendant to show why, as a matter of law, the explanation is insufficient.
Id.
In assessing diligence, the relevant inquiry is whether the plaintiff acted as an
ordinarily prudent person would have acted under the same or similar circumstances.
Id. The duty to use diligence continues from the date the suit is filed until the date the
defendant is served. Flanigan, 613 S.W.3d at 365. Diligence is generally determined by
examining the time it took to secure citation, service, or both, and the type of effort
expended or lack of effort in procuring service. Proulx, 235 S.W.3d at 216. We must
consider the overall effort expended and whether the search ceased to be reasonable,
especially when other methods of service were available. Ashley, 293 S.W.3d at 181.
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Tkach pleaded the affirmative defense of limitations and submitted evidence that
Appellants did not accomplish service until twenty months after the limitations period
had expired. The burden thus shifted to Appellants to demonstrate diligence as to every
period of delay in procuring citation and effecting service. See Proulx, 235 S.W.3d at
216.
In this case, there were four periods of substantial delay that warranted
explanations. The first was a forty-eight-day gap between the request for issuance of
citation on November 9, 2018, and the date that Appellants’ counsel instructed his
original process server TSS to retrieve the citation on December 27, 2018. Appellants
offer no explanation for this gap. In Flanigan, we criticized the plaintiff for waiting nine
days to put the citation in the process server’s hands without any explanation for the
delay. See 613 S.W.3d at 366. The law’s patience is necessarily thinner for the same
type of delay but that lasted five times longer, also without explanation.
The second period of substantial delay stretched from January 11, 2019, when
counsel touched base with the process server and ran internet searches on Tkach,
through March 6, 2019, when Cross contacted TSS and learned that it had attempted
service apparently for the first time on that day. Appellants offer no defense for their
inaction during this fifty-four-day span. See Deloney v. Koscelnik, No. 02-19-00433-CV,
2020 WL 7252316, at *5 (Tex. App.—Fort Worth Dec. 10, 2020, no pet.) (mem. op.)
(concluding that party failed to raise a fact issue on diligence in light of an unexplained
two-month delay).
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We discuss the third and fourth periods of delay together because Appellants
offer the same justification for both periods. In the third period, service efforts were
deferred for six months in the middle of 2019. Mackenzie’s affidavit stated that in April
2019, he asked his process servers to verify with neighbors that Tkach still lived at the
Countryside address, and they confirmed that she did. The next reported activity was
in October 2019, when Cross obtained a new citation and arranged for PCP to again
attempt service at the Countryside address.
A fourth period of delay is the lull between PCP’s last attempt at service on
December 21, 2019, and the process server’s suspension of work due to the onset of
the COVID pandemic in March 2020, at which point the lack of further diligence might
be temporarily excused. Appellants were required to explain what steps they took to
obtain service in the intervening three months. See Son Tran v. Trejos, No. 14-17-00998-
CV, 2019 WL 962605, at *4 (Tex. App.—Houston [14th Dist.] Feb. 28, 2019, no pet.)
(mem. op.) (excusing a party’s temporary lack of diligence after a hurricane made service
impracticable, but still affirming summary judgment on limitations grounds because of
unexplained lapses in effort prior to the hurricane).
Appellants attempt to bridge both of these gaps with testimony concerning their
internet searches for Tkach. Counsel testified that during these third and fourth
periods, they regularly consulted Facebook, Google, and one web service used to locate
people in an effort to track her down. But in Ashley, the supreme court held that where
counsel spent hours over an eight-month period poring over public records and a
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variety of different websites designed to help locate people, this still did not create a
fact issue as to diligence during that time. See 293 S.W.3d at 180–81. Thus, Appellants’
efforts during these third and fourth periods of delay are in the same vein as, and of
lower quality than, the efforts that the court found inadequate in Ashley.1
We hold that these four periods of delay—one of six weeks, another of over six
weeks, yet another of six months, and the last of three months, none of them adequately
explained—together show Appellants’ lack of diligence as a matter of law. See Erven v.
Springer, No. 02-16-00350-CV, 2017 WL 2471096, at *4 (Tex. App.—Fort Worth
June 8, 2017, no pet.) (mem. op.) (concluding that unexplained gaps of six weeks, three
months, and three months, taken together, showed lack of diligence as a matter of law).
We overrule Appellants’ first, fourth, and sixth issues.2
IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DECLINING TO
EXTEND LIMITATIONS
In their third issue, Appellants contend that the trial court abused its discretion
by refusing to extend limitations for their claims. Appellants contend that the trial court
1
Appellants’ third period of delay is perhaps made more inexplicable by the fact
that, once neighbors confirmed that Tkach still lived at the Countryside address,
Appellants’ counsel nonetheless decided against pursuing substitute service. See, e.g.,
Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
2
Briefly, in their second issue, Appellants note that the social-media method of
service through which they served Tkach was not available until 2020. See Tex. Civ.
Prac. & Rem. Code Ann. § 17.033; Tex. R. Civ. P. 106(b)(2); De La Garza v. Dunn,
No. 03-19-00849-CV, 2021 WL 1202089, at *5 n.7 (Tex. App.—Austin Mar. 31, 2021,
no pet.) (mem. op.). We do not see how this fact tends to mitigate or explain the delay
that we have addressed above. We summarily overrule Appellants’ second issue.
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had authority to extend limitations under the Texas Supreme Court’s emergency orders
concerning the COVID pandemic. According to Appellants, the trial court abused its
discretion by declining to invoke that authority to save Appellants’ claims from a
limitations bar in light of the difficulties that the COVID pandemic posed for service.
The emergency order in effect at the time of the summary judgment was the
supreme court’s thirty-sixth order. See Thirty-Sixth Emergency Order Regarding COVID-19
State of Disaster, 629 S.W.3d 897, 897 (Tex. 2021). The order provided that in most civil
cases, the trial court “may,” and in some instances “must,” modify or suspend any and
all statutory deadlines:
3. Subject only to constitutional limitations, all courts in Texas may in any
case, civil or criminal—and must to avoid risk to court staff, parties, attorneys,
jurors, and the public—without a participant’s consent:
a. except as provided in paragraph (b), modify or suspend any and all
deadlines and procedures, whether prescribed by statute, rule, or
order, for a stated period ending no later than June 1, 2021 . . . .
Id. (emphasis added). To construe this order, we interpret it according to its plain terms,
giving the words used their ordinary meaning unless a different meaning is apparent
from the context or the plain meaning leads to absurd results. W. Harwood 334B Land
Tr. v. Clement, No. 02-20-00216-CV, 2021 WL 1229973, at *4–5 (Tex. App.—Fort
Worth Apr. 1, 2021, no pet.) (mem. op.).
In this case, limitations had already passed by the time that Appellants requested
an extension. The emergency orders do not give courts authority to revive jurisdiction
once a jurisdictional deadline has passed. See Choudry v. Choudry, No. 01-20-00698-CV,
12
2021 WL 3556660, at *1 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, no pet.)
(per curiam) (mem. op.) (dealing with jurisdictional deadline to appeal); In re J.R., 622
S.W.3d 602, 606 (Tex. App.—Fort Worth 2021, orig. proceeding) (dealing with
jurisdictional deadlines for parental termination proceedings), subsequent mandamus
dismissed, No. 21-0388 (July 2, 2021); Quariab v. El Khalili, No. 05-20-00979-CV, 2021
WL 960646, at *1 (Tex. App.—Dallas Mar. 15, 2021, no pet.) (mem. op.) (holding that
the language of the emergency orders “does not suggest that a court can create
jurisdiction for itself where the jurisdiction would otherwise be absent”). These cases
deal with jurisdictional deadlines, though, and “generally a statute of limitations
provides an affirmative defense, not a jurisdictional hurdle.” In re J.H., No. 02-20-
00366-CV, 2021 WL 733083, at *2 (Tex. App.—Fort Worth Feb. 25, 2021, orig.
proceeding) (mem. op.). We have found no authority concerning whether the
emergency orders permit the retroactive extension of the statute of limitations, and we
express no opinion on that issue.
Regardless, assuming without deciding that the trial court had the power to
modify or suspend limitations as a deadline prescribed by statute, see Satterthwaite v. First
Bank, No. 02-20-00182-CV, 2020 WL 4359400, at *1 n.1 (Tex. App.—Fort Worth
July 30, 2020, no pet.) (mem. op.), the trial court also had discretion to decline to do so.
See Thirty-Sixth Emergency Order, 629 S.W.3d at 897. The starting point for this provision
is that the trial court “may” modify or suspend any deadline. In general, “may” is a
permissive term that gives rise to discretionary authority or grants permission or a
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power. See Tex. Gov’t Code Ann. § 311.016(1); Skeels v. Suder, No. 02-18-00112-CV,
2021 WL 4785782, at *8 (Tex. App.—Fort Worth Oct. 14, 2021, no pet. h.) (mem. op.
on reh’g). Consistent with the use of this permissive term, Texas courts have
interpreted the emergency orders as generally permitting trial courts to extend deadlines
rather than requiring them to do so. See Kim v. Ramos, 632 S.W.3d 258, 270 (Tex. App.—
Houston [1st Dist.] 2021, no pet.) (collecting cases). That is, by and large, the order
vests trial courts with “broad discretion to modify or suspend ‘any deadlines and
procedures’ prescribed by statute.” Id.That discretion gives way to only a few restrictions stated in the order, but none
apply here. One restriction is that the trial court’s overall authority is “[s]ubject only to
constitutional limitations,” but Appellants have not suggested that there was some
constitutional imperative that should have compelled the trial court to extend the statute
of limitations. Thirty-Sixth Emergency Order, 629 S.W.3d at 897. Another apparent
restriction on discretion is that the trial court “must” extend a deadline if necessary in
order to avoid “risk” to those involved in the judicial process. Id. “Must” is a
mandatory term. AC Interests, L.P. v. Tex. Comm’n on Env’t Quality, 543 S.W.3d 703, 709
(Tex. 2018). However, Appellants have not identified what health risks might have
been avoided by the retroactive extension of a statute of limitations that passed in
November 2018, over a year before the first reported Texas case of COVID-19 in
March 2020. See In re State, 602 S.W.3d 549, 550 (Tex. 2020) (orig. proceeding). By the
time there was any danger to avoid, Appellants had already had nearly fifteen months
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to achieve service or at least demonstrate their diligence in attempting to do so. This
they failed to do.
Assuming that the trial court had authority to modify the limitations deadline,
the trial court did not abuse its considerable discretion by declining to suspend the
statute of limitations on account of a danger that did not yet exist during the fifteen
months that Appellants slept on their responsibilities. We overrule Appellants’ third
issue.
V. DISCLOSURE IN DISCOVERY
In their fifth issue, Appellants maintain that the trial court could not fairly
dispose of the case on limitations grounds because Tkach failed to disclose this defense
in discovery. As Appellants note, they served requests for disclosure along with their
original petition in which they asked Tkach to disclose her legal theories and defenses.
In her initial responses, Tkach did not list limitations as a defense, and Tkach did not
supplement her disclosures to mention limitations before the discovery deadline of
December 21, 2020. In the trial court, Appellants objected to the use of this defense,
but the trial court overruled the objection and granted summary judgment. To this
ruling, Appellants now assign error. Appellants submit that under Rule 193.6, Tkach
should not have been permitted to prevail on this undisclosed defense, especially in the
absence of any evidence that there was good cause for the nondisclosure or that the
nondisclosure would not unfairly surprise Appellants.
15
Tkach counters that Rule 193.6 is best employed to exclude evidence, not entire
legal defenses. According to Tkach, Rule 193.6 has limited applicability here because
Appellants did not seek to exclude any evidence in the trial court. Rather, they sought
to permanently preclude Tkach from ever prevailing on the defense of limitations.
Under former Rule 194.2, which governs this case, a party could request
disclosure of “the legal theories and, in general, the factual bases of the responding
party’s claims or defenses.” Former Tex. R. Civ. P. 194.2(c) (2020); see Order, Misc.
Docket No. 20-9153 (Tex. Dec. 23, 2020). A party who fails to timely make a disclosure
response may not introduce in evidence the material or information that was not timely
disclosed unless the court finds that (1) there was good cause for the failure to timely
disclose or (2) the failure to timely disclose will not unfairly surprise or unfairly prejudice
the other party. Tex. R. Civ. P. 193.6(a). The party seeking to admit the evidence bears
the burden to establish good cause or lack of unfair surprise. Estate of Luce, No. 02-17-
00097-CV, 2018 WL 5993577, at *10 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.)
(mem. op.).
When answering a request for disclosure, “the responding party need not marshal
all evidence that may be offered at trial.” Former Tex. R. Civ. P. 194.2(c). The
discovery rules are intended to require disclosure only of a party’s basic assertions, not
necessarily all aspects of the party’s claims or defenses. In re J.N., No. 02-17-00179-CV,
2017 WL 3910910, at *3 (Tex. App.—Fort Worth Sept. 7, 2017, no pet.) (mem. op.);
16
see Robinson v. Lubbering, No. 03-09-00655-CV, 2011 WL 749197, at *5 (Tex. App.—
Austin Mar. 2, 2011, no pet.) (mem. op.) (quoting Tex. R. Civ. P. 194.6 cmt. 2).
Appellants contend that because Tkach failed to timely disclose her limitations
defense in discovery, Tkach should not be able to prevail on this theory. However,
Rule 193.6 is generally geared towards the exclusion of evidence, not entire legal
theories. “Although it might be possible that untimely supplemented or amended
discovery responses could cause surprise concerning the issues in a case, rule 193.6(a)
relates to the discovery of evidence . . . .” Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d
854, 862 (Tex. App.—Dallas 2006, no pet.). “[I]ts principal purpose—and most
common application—is to protect a party from surprise concerning the existence of
undisclosed evidence—not issues.” Id. Thus, we have held that “properly pled claims
for affirmative relief, as opposed to withheld evidence, are not abandoned or waived by
a party’s failure to expressly identify those claims in a response to a request for
disclosure.” J.N., 2017 WL 3910910, at *3 (quoting Concept Gen. Contracting, Inc. v.
Asbestos Maint. Servs., 346 S.W.3d 172, 180 (Tex. App.—Amarillo 2011, pet. denied));
accord Bundren v. Holly Oaks Townhomes Ass’n, Inc., 347 S.W.3d 421, 431 (Tex. App.—
Dallas 2011, pet. denied). “[T]here is nothing in the case law linking a failure to respond
to discovery to an abandonment of a claim[.]” Bundren, 347 S.W.3d at 431 (quoting
Killam Ranch Props., Ltd. v. Webb Cnty., No. 04-08-00105-CV, 2008 WL 4958452, at *2
(Tex. App.—San Antonio Nov. 19, 2008, no pet.) (mem. op.)).
17
Rather, notice that a party is pursuing a particular legal theory “generally must
come from the pleadings.” Concept Gen. Contracting, 346 S.W.3d at 179. Appellants are
complaining that they lacked notice of Tkach’s limitations defense, but they received
notice of Tkach’s theory from her amended answer and the motion for summary
judgment. See id. In her amended answer, Tkach thoroughly explained her defensive
theory:
Statute of Limitations . For further answer, and by way of affirmative
defense, Defendant Suzannah Tkach asserts that Plaintiffs’ claims are time
barred. Defendant affirmatively states Plaintiffs’ claims are barred by the
applicable two-year statute of limitations set forth in section 16.003 of the
Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a) (Vernon 2014). Although Plaintiffs filed their
petition on November 9, 2018 (fourteen days before the expiration date
of the limitations period on November 23, 2018), Plaintiffs did [not] serve
Defendant until July 29, 2020 – 628 days after filing suit. During that 20-
month time period, Plaintiffs only attempted to serve Defendant between
October and December of 2019, waiting over 10 months to begin
attempts and then delaying another 7 months after their last attempt. This
is not due diligence as a matter of law. Thus, Plaintiffs’ negligence claims
are time barred by the 2-year statue [sic] of limitations.
Had this detailed pleading been employed as a response to the requests for disclosure,
it would have been more than adequate to identify the basis of Tkach’s defense. We
will not permanently bar Tkach from raising a meritorious defense simply because,
though adequately pleaded, it was not also disclosed in discovery.
Even if Appellants’ attack were properly targeted at the exclusion of Tkach’s
summary judgment evidence, Appellants would not prevail because there was no unfair
surprise. Tkach’s evidence consisted solely of Appellants’ petition and a declaration
18
from Appellants’ process server, both of which Appellants themselves had previously
filed with the court. Moreover, Tkach gave Appellants notice of her intent to develop
a limitations defense by pleading it in her amended answer and by moving for summary
judgment on the issue of limitations, which was not a complicated issue. The case
against unfair surprise is made when, as here, the evidence sought to be excluded is
(1) derived from an opposing party’s own case filings and (2) offered in support of an
uncomplicated legal theory that was (3) already fully set out in the proponent’s
pleadings. See Hsu v. Conterra Servs., LLC, No. 01-20-00182-CV, 2021 WL 921672, at
*4–5 (Tex. App.—Houston [1st Dist.] Mar. 11, 2021, no pet.) (mem. op.) (concluding
that there was no unfair surprise because the underlying theory was stated in the party’s
pleadings and because “this is not a complicated suit”); Snowhite Textile & Furnishings,
Inc. v. Innvision Hosp., Inc., No. 05-18-01447-CV, 2020 WL 7332677, at *11–12 (Tex.
App.—Dallas Dec. 14, 2020, no pet.) (mem. op.) (upholding the admission of
undisclosed evidence because the evidence supported an already-pleaded theory and
because the evidence derived from the opposing party’s own discovery); Tijerina v.
Wysong, No. 14-15-00188-CV, 2017 WL 506779, at *6 (Tex. App.—Houston [14th
Dist.] Feb. 7, 2017, no pet.) (mem. op.) (collecting similar cases). Put differently,
Appellants could hardly be surprised by their own court filings when those filings were
used to establish basic propositions—such as when they filed suit—for purposes of a
limitations defense that was already plainly stated in Tkach’s amended answer and
motion for summary judgment.
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We therefore conclude that despite Tkach’s failure to disclose her defense in
discovery, the trial court did not abuse its discretion by denying Appellants’ objections
to the motion for summary judgment and by granting summary judgment on the basis
of the limitations defense. We overrule Appellants’ fifth issue.
VI. CONCLUSION
We affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: January 27, 2022
20