# Brown v. Shores

> Texas Court of Appeals, 14th District (Houston) · April 25, 2002 · 77 S.W.3d 884

URL: https://www.frixlaw.com/law-library/cases/9517611

## Case

- **Full name:** Allison BROWN, Appellant, v. Paul SHORES, Appellee
- **Court:** Texas Court of Appeals, 14th District (Houston)
- **Decided:** April 25, 2002
- **Citations:** 77 S.W.3d 884; 2002 Tex. App. LEXIS 2940; 2002 WL 730739
- **Precedential status:** Published
- **Opinion:** Concurrence by Brister
- **Judges:** John S. Anderson
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9517611

## How later opinions describe it (automated extraction)

- holding that when defendant moves for summary judgment based on lack of plaintiffs diligence in obtaining service of process, plaintiff must present some evidence to explain delay, thereby shifting burden back to the defendant to defeat as matter of law
- noting that, because “diligent-service question focuses almost entirely on the efforts and thoughts of plaintiffs counsel, so the initial burden of presenting evidence should rest there, too”; “[ojtherwise, every one of these numerous cases will begin with the defendant sendin…
- holding, AIssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.@
- holding, “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”
- noting that because “diligent-service questions” focus almost entirely on efforts and thoughts of plaintiff’s counsel, initial burden of presenting evidence on service should rest there

## Opinion text

SCOTT BRISTER, Chief Justice,
concurring.
I concur in the Court’s opinion and judgment, but write separately to address several difficult points in the Texas Supreme Court opinions governing this very common dispute.
This case involves a common-law exception to limitations — the distressingly frequent situation in which suit is filed shortly before a limitations deadline, but not served until well after. In such cases, filing interrupts limitations only if the plaintiff uses due diligence in service. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990).
I agree the issue of diligent service was raised in this case, even though Shores (the defendant) did not plead limitations, and Brown (the plaintiff) did not plead due diligence in avoidance. Unpleaded issues may be tried by consent in summary judgment proceedings if no one objects. Roark v. Stalhuorth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991). Shores addressed diligent service in his motion (the only issue he raised), and no one objected to any lack of pleadings. 1 The question then is who had to do what.
Plead or Prove?
Unfortunately, that is not entirely clear. In 1975, the Texas Supreme Court held that if a plaintiff merely pleads diligence, a defendant filing a limitations summary judgment must disprove diligence as a matter of law. See Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975). Fifteen years later, the Court required more than a pleading, stating that upon a defendant’s motion showing service after the limitations deadline, “the burden shifts to the plaintiff ... to explain the delay.” Murray, 800 S.W.2d at 830 . The Supreme Court did not mention Zale in Murray , and indeed has never mentioned the two cases in one opinion. Though it is possible to reconcile the facts in the two cases, 2 it is not easy to reconcile the rules stated in them. 3
Other exceptions to limitations show the same ambivalence about what a plaintiff must do. Sometimes a plaintiff needs only a pleading. Thus, if a plaintiff pleads the discovery rule, the defendant must negate it as a matter of law. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, *889 646 (Tex.2000). If the plaintiff merely pleads a statutory tolling provision, the defendant must again prove the opposite. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996).
But with other exceptions, a plaintiff must present proof in response to a limitations motion — merely pleading the matter is not enough. Thus, a plaintiff cannot just plead fraudulent concealment, but must present evidence that supports it. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex.1999). Similarly, a plaintiff relying on the open courts provision must present evidence that (1) there was no reasonable opportunity to discover the alleged wrong and sue within the limitations period, and (2) suit was filed within a reasonable time after discovery. Shah v. Moss, 67 S.W.3d 836, 847 (Tex.2001).
I believe the Murray rule requiring some proof is the one we must apply, and not just because it is the more recent opinion. The diligent-service question focuses almost entirely on the efforts and thoughts of plaintiffs counsel, so the initial burden of presenting evidence should rest there, too. See 2 McCormick on Evidence § 337 Allocating the Burdens of Proof (John W. Strong ed., 5th ed.1999). Otherwise, every one of these numerous cases will begin with the defendant sending a notice to depose plaintiffs counsel and a subpoena for all files, phone records, calendars, personal organizers, and so on. This will start any case off on the wrong foot.
In the present case, I agree with the Court that Brown’s response was untimely, though it is troubling that (1) our record includes a vacation letter showing Brown’s counsel was on vacation at the time a response was due; and (2) although Brown’s motion for leave was file-stamped on March 23, 2001, the trial court’s docket sheet reflects that it was not filed until March 26, 2001, after the summary judgment was granted. Nevertheless, it was her counsel’s duty to get a ruling on that motion, and none is included. Thus, she has presented no evidence to explain any delay in service.
But Shores did. In his summary judgment motion, Shores not only proved the dates of the auto accident, filing, and service, but went further and included Brown’s motion and affidavit for substituted service. These explained some (but not all) of the delay. Generally, we review all testimony in the summary judgment record, without regard to which party filed it. See Wilson v. Burford, 904 S.W.2d 628, 629 (Tex.1995). Thus, there was some evidence explaining Brown’s delay in service.
Prove or Raise?
But was it enough? Murray requires a plaintiff to present evidence to “explain the delay” in service. 800 S.W.2d at 830 . Forty-nine days before Murray , the Texas Supreme Court held in Gant v. DeLeon that “the [defendant] must show that, as a matter of law, diligence was not used to effectuate service.” 786 S.W.2d 259, 260 (Tex.1990). If “explain” means the same thing as “prove,” these contemporaneous opinions would conflict.
To avoid this conflict, Murray must be read to impose only a burden to present some evidence, similar to that imposed on a non-movant who receives a no-evidence motion for summary judgment. See Tex.R. Civ. P. 166a(i). Murray does not shift the burden of proof. If the plaintiff presents some evidence, the burden shifts back to the defendant to show why those explanations are insufficient as a matter of law. Belleza-Gonzalez v. Villa, 57 S.W.3d 8, 11 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Diligent-service cases have not always made clear this distinction between *890 the burden of raising a fact issue and the burden of proof. 4
Some confusion may stem from the unique requirements and circumstances in diligent-service cases. First, the plaintiff usually has all the evidence, consisting of conversations and directions by counsel before the defendant even knew of the suit. Second, the plaintiffs evidence must explain every period of delay. See Gant, 786 S.W.2d at 260 . Third, each explanation must be legally proper. See, e.g., Belleza-Gonzalez, 57 S.W.3d at 11 (holding unenforceable oral agreement to delay service was insufficient to show diligence); Broom v. MacMaster, 992 S.W.2d 659, 665 (Tex.App.-Dallas 1999, no pet.) (holding plaintiffs desire to obtain remand from federal court did not justify delay in serving defendant). Thus, a plaintiffs effort to raise a fact issue will often prove or disprove diligence as a matter of law. Nevertheless, Murray imposes only the former burden, not the latter.
In this case, the substituted service affidavit shows several unsuccessful attempts at service within three weeks of filing. But the affidavit itself was not signed until five months later, and states no basis for the delay in seeking substituted service. Without any explanation as to this gap, this is not enough to meet Brown’s Murray burden. Therefore, I join in the Court’s judgment.
. Indeed, it is hard to imagine any filed-before-but-served-after limitations motion that would not raise the diligent service issue. When drafting a motion for summary judgment in such cases, defense counsel will undoubtedly notice that the date of filing is within rather than beyond the limitations period. This will inevitably lead either to: (1) abandoning the motion, or (2) arguing that service was delayed due to lack of diligence.
. In Zale, service occurred thirty-two days after limitations ran, and the plaintiff corporation presented evidence that its attorney died two months earlier, that the attorney who filed the suit was acting only on an interim basis, and that the corporation had no address for one defendant and incorrect addresses for the other two. Zale Corp. v. Rosenbaum, 517 S.W.2d 440, 442-43 (Tex.App.-El Paso 1974), reversed, 520 S.W.2d 889 (Tex.1975). This would certainly appear to meet the Murray requirement that the plaintiff present evidence explaining any delay. But because the Texas Supreme Court mentions none of these facts, it is clear this was not the basis for the Court's opinion.
.Arguably, Zale holds only that the lower court erred by placing the burden of proof on the plaintiff, not the burden of raising a fact issue. But this would require a deliberate misconstruction of the lower court’s opinion, which held that the only burden the plaintiff had was the latter. See Zale, 517 S.W.2d at 442 .
. See, e.g., Seagraves v. City of McKinney, 45 S.W.3d 779, 782 (Tex.App.-Dallas 2001, no pet.) (stating plaintiff carries burden to "prove” due diligence); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (same); Belleza-Gonzalez v. Villa, 57 S.W.3d 8, 11 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (stating plaintiff carries burden to "demonstrate” due diligence); Allen v. City of Midlothian, 927 S.W.2d 316, 320 (Tex.App.-Waco 1996, no pet.) (same).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9517611. Public record. Not legal advice.