In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-21-00162-CV

___________________________

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

KEANA PRESCOD AND SHELLEY HARTE, Appellants

V.

SUZANNAH TKACH, Appellee
2

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.
3

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.
4

• 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.
5

• 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.
6

• 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 
7

(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.
8

“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.
9

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).
10

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 
11

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.
12

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, 
13

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 
14

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 
15

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.
16

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.); 
17

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.)).
18

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 
19

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.
20

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