Opinion issued October 10, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00090-CV ——————————— TAYLAR STOWERS, Appellant V. DONALD RENO, Appellee
On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2018-81448
MEMORANDUM OPINION
This appeal addresses whether a trial court may direct a verdict against a party
without allowing her to present her case. We hold that under the circumstances
presented here, it may not. Appellant Taylar Stowers sued Appellee Donald Reno for personal injuries
she allegedly sustained in an automobile accident. Shortly before the case went to
trial, Stowers’s counsel filed an agreed motion to withdraw and for a continuance
because he was medically unable to continue representing Stowers. Even though
Stowers’s counsel was too ill to attend in person, the trial court denied the agreed
motion for continuance, failed to rule on the agreed motion to withdraw, and called
the case for trial.
But the proceedings that followed could hardly be called a “trial.” Because
neither Stowers nor her counsel was present in person, the trial court refused to allow
them an opportunity to present evidence or argument, or to contest the evidence
Reno offered. Instead, it granted Reno’s motion for a directed verdict and entered a
final take nothing judgment in his favor. We reverse the trial court’s judgment.
Background
Reno was driving in Houston when his vehicle struck another car in which
Stowers was a passenger, allegedly injuring her. Stowers sued, claiming negligence.
The Pretrial Proceedings.
Stowers filed suit on November 12, 2018, almost two years after the accident
occurred and ten days before the limitations period expired. See TEX. CIV. PRAC. &
REM. CODE § 16.003(a). Reno made a general denial and jury demand, and he
2 asserted an affirmative defense of limitations. Reno paid the jury fee on the same
day he answered.
In September 2019, Stowers filed her First Amended Petition. The First
Amended Petition added a claim for negligence per se and allegations of gross
negligence, and sought damages between $200,000 and $1 million.
The trial court first set the case for trial on its two-week docket beginning in
2020. The case was then reset four times. The first two resets were at Reno’s request;
the other two the trial court apparently initiated.
In February 2020, Reno filed his first motion for continuance, based in part
on ongoing discovery issues. Stowers opposed this motion. The next month, the trial
court reset the case for trial on the two-week docket beginning January 25, 2021.
Reno again moved for a continuance, on the grounds that written discovery
was complete but depositions remained and were being delayed by discovery
disputes. Again, Stowers opposed the motion. The trial court granted Reno’s second
motion for continuance and reset the case for trial in August.
The trial court reset the case two more times, apparently on its own initiative.
Ultimately, the trial court reset the case for trial on the two-week docket beginning
November 14, 2022.
Five days before the trial setting, Stowers’s counsel moved to withdraw and
for a continuance. Counsel argued he had to withdraw because he was “being treated
3 by a number of doctors for chronic medical conditions that materially impair[ed]
[his] ability to represent [Stowers],” and because he was scheduled to have “thoracic
surgery” on November 18, 2022, which fell during the two-week trial docket on
which the case had been set. Counsel noted that the surgery had been rescheduled
multiple times, not only because of the surgeon’s unavailability but also because of
“conflicting medical issues” such as “emergency oral surgery” and a resulting
infection.
Trial counsel’s withdrawal motion also noted that “over the past several
months,” he had “experienced a gradual deterioration in his level of occupational,
personal, and social functioning due to several psychosocial stressors,” and that his
“ability to practice law ha[d] been significantly impaired.” He concluded it would
be “in the best interest of [his] physical and mental health to continue his medical
leave from the practice; or, at a minimum, significantly reduce his workload to such
a small degree in order to ethically withdraw, close-out, or refer the few remaining
cases he has been unable to move or close out.” Stowers consented to her counsel’s
withdrawal and signed the motion to withdraw, and Reno agreed to it as well.
Along with his motion to withdraw, trial counsel also sought a continuance of
the trial setting on Stowers’s behalf. The motion for continuance was based on the
same reasons as the motion to withdraw. Reno agreed to the continuance.
4 Stowers’s counsel set the motions to withdraw and for continuance on the trial
court’s submission docket for November 21, 2022, which was one week into the
two-week trial setting.
The Case Is Called for Trial.
The trial court’s “Court Procedures” state, “[y]our case is ON CALL for the
entire two-week period. This means you may be called to trial at any time during the
two-week period.” The two-week trial docket on which this case was set began on
November 14, 2022. During the evening of Wednesday, November 16, the trial
court’s coordinator emailed Stowers’s trial counsel, telling him the case had been
assigned for trial that Friday morning, on November 18 at 9:00 a.m.
Stowers’s counsel responded the next day (Thursday, November 17) with an
email to the court coordinator saying he was on medical leave and had filed a motion
for continuance and withdrawal. The coordinator wrote back to say that motions for
withdrawal had to be set for oral hearing. Counsel replied by pointing out that the
Trial Court Procedures require oral hearings for motions to withdraw “unless all
counsel and the client of the attorney seeking withdrawal (as evidenced by the
client’s signature) agree to the motion.” At 4:54 p.m. that day, the coordinator sent
an email confirming that the case was set for trial the next morning at 9:00 a.m. and
noting that the motions for continuance and withdrawal were not set for submission
until the following Monday. The coordinator asked counsel to “[p]lease advise.”
5 On the morning of the day of trial, Stowers’s trial counsel emailed the
coordinator to reiterate that he had health issues preventing him from both trying the
case and continuing to represent Stowers. Counsel said he could not drive to the
courthouse, and he requested the ability to participate remotely “for as long as my
health allows.” The coordinator provided a videoconference link, and Stowers’s
counsel logged on.
Proceedings Before the Trial Court.
When the November 18 proceedings began, Reno’s counsel was in the
courtroom and prepared to move forward with a trial. Stowers’s counsel had joined
by videoconference. And the venire panel was assembled in a hallway outside the
courtroom. Stowers herself was not present when the proceedings began; she joined
later by videoconference.
The trial court started by asking Stowers’s counsel, “[w]hy aren’t you here?”
Counsel said he had medical issues preventing him from driving to the courthouse
or trying the case, and that he had filed a motion for continuance and withdrawal.
When the trial court asked, “[s]o are you saying that you want to conduct this trial
remotely?” counsel responded, “I’m not prepared to conduct it. I filed a continuance
and withdrawal that I thought was agreed, so I’m a little scared to try the case
because I’ve been sick.”
6 Reno’s counsel confirmed that Reno was unopposed to both the motion for
withdrawal and the motion for continuance. The trial court pointed out that the
motion was not set for submission until the following Monday, and then said, “[s]o
this is a 2018 case, so we are well into it and it’s one of the older cases, so at this
point the Court’s inclined to go forward. If you want to—either way, it’s going
forward. . . . If you are unwell, I’m sympathetic to that, but a continuance should
have been on file prior to last week.”
The trial court next took a short recess to contact Stowers so that she could
join the videoconference. When Stowers joined, the trial court did not swear her in
or do anything to indicate she would be testifying; the court began by asking whether
she was aware of the trial setting. Stowers said she had been told “I was having a
trial coming soon,” and that she had been asked the previous week to consent to her
trial counsel’s withdrawal. After an exchange with Stowers’s counsel, the trial court
said, “[s]o the Court’s position at this point is to go forward with the case. If you’re
not able to drive [addressing Stowers’s counsel], there’s obviously other alternatives
to you actually driving. Ma’am [addressing Stowers], if you would like to come and
prosecute your case, that is obviously your right, but we are looking at a 2018 case.”
Although it is unclear whether Stowers remained on the videoconference after that
exchange, she did not speak again on the record, nor did the trial court address her
again.
7 The trial court then took another recess to consider the motion to continue.
When the proceedings resumed, the trial court summarized certain aspects of the
history of the case: that Stowers’s counsel had repeatedly represented, since August
2021, that he intended to file motions for continuance and withdrawal due to his
health issues but had failed to do so. The trial court’s recitation of this history did
not include mention of its own resettings of the trial date, or the prior continuances
that Reno sought and obtained.
Stowers’s counsel responded by saying that he had thought he would get better
and “be able to go forward,” such that he “didn’t know [he] had to withdraw until
September” of 2022, two months before the trial setting. The trial court replied,
“[s]ir, can you be quiet. The discussion is over. The continuance will be denied and
so we will go forward. So since you are not able to be here, this case will be
dismissed and the 47 lovely citizens of this County will be released from jury service
today. All right. So that is the Court’s ruling and we’re going to go forward.”
The trial court told Stowers’s counsel it would allow him time to schedule a
ride to the courthouse, saying it was being “more than gracious in allowing
additional time when [the members of the venire panel] have been here since 9:00
a.m.” The trial court continued, “[s]o if you come down to the courthouse by
whatever methods, Uber, anything else, you’re more than welcome to do that. If not,
we will continue with the proceeding and this case will either be dismissed for want
8 of prosecution or a take nothing judgment will be entered.” Counsel responded, “I
don’t see how my health will allow me to be there with a high-risk and respiratory
issues. I’m on an immunizer and I take breathing treatments every three hours. . . . I
can’t do that.”
Stowers’s counsel offered to “do the best I can remotely.” But because Reno’s
counsel did not agree to conduct a jury trial remotely, the trial court denied that
request.
The trial court then asked Reno’s counsel how he wished to proceed. Reno’s
counsel made an oral motion for directed verdict on two bases: first, that Stowers
presented “no evidence of any negligence”; and second, that Stowers’s claims were
barred by limitations because, while she had filed suit within the limitations period,
she had not been diligent in effecting service. Reno’s counsel offered four
documents as exhibits in support of his limitations argument. He did not present any
sponsoring witnesses or authentication evidence. Stowers’s counsel objected, which
the trial court “noted for the record.” The trial court then admitted all four exhibits.
The trial court granted a directed verdict “on the issue of negligence and
[Reno’s] defense of statute of limitations.” After doing so, the trial court remarked,
“the directed verdicts have been granted and so this would here conclude this trial.”
The trial court did not ask Stowers or her counsel whether they had any evidence or
arguments to present, or offer them another opportunity to speak.
9 The trial court then called the venire panel into the courtroom, thanked its
members for their service, and dismissed them.
Entry of Final Judgment and Post-Judgment Proceedings.
The Final Judgment noted that “[n]either [Stowers] nor her attorney appeared
in person for trial.” As for Stowers’s negligence claim, the judgment states, Stowers
“did not put on any evidence of the proper standard of care, breach of that standard,
or that any breach caused or proximately caused any injury to [her].” On Reno’s
limitations defense, the judgment continued, Reno “offered exhibits that were
admitted into evidence showing [Stowers] filed suit one week before limitations ran
and did not perfect service until 105 days after limitations ran. [Stowers] did not
present any evidence to show due diligence in perfecting service after filing suit.”
The judgment then noted that the trial court “granted [Reno’s] motion for a
directed verdict on all [Stowers’s] claims, granted [Reno’s] motion for a directed
verdict on [his] affirmative defense of limitations, and dismissed all of [Stowers’s]
claims with prejudice.” Finally, the judgment ordered that Stowers “take nothing by
way of this case.”
Stowers timely moved for a new trial. Her motion was supported by trial
counsel’s affidavit, which detailed his health issues and why he could not appear in
person at the November 18 proceedings, as well as his ultimately unsuccessful
10 efforts to obtain substitute counsel. Reno did not respond. Stowers’s motion for new
trial was overruled by operation of law on February 2, 2023.
Analysis
In five points of error, Stowers contends the trial court committed reversible
error by: (1) entering a directed verdict in Reno’s favor without any opportunity to
present evidence; (2) denying her agreed motion for continuance; (3) entering
judgment on the merits; (4) “dismissing the case” without notice; and (5) denying
her motion for new trial. We agree the trial court improperly directed a verdict in
Reno’s favor without due process, and thus we affirm Stowers’s first point of error.
I. Standard of Review.
A trial court can direct a verdict in two circumstances: when the plaintiff fails
to present evidence raising a fact issue essential to its right of recovery, or when the
evidence conclusively proves a fact that establishes the movant’s right to judgment
as a matter of law. See Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d
74, 77 (Tex. 2000); Cox v. S. Garrett, L.L.C., 245 S.W.3d 574, 578 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). If the trial court grants a directed verdict, we
review it under a legal sufficiency standard. See Sowell v. The Kroger Co., 263
S.W.3d 36, 38 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing King Ranch,
Inc. v. Chapman, 18 S.W.3d 742, 750–51 (Tex. 2003)).
11 Conducting a legal sufficiency review of a directed verdict requires us to
determine whether there is any evidence of probative value that raises a material fact
issue. See White v. Sw. Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983). If so—if
there is any conflicting evidence on any theory of recovery—the determination of
that issue is for the jury. See Szczepanik v. First S. Tr. Co., 883 S.W.2d 648, 649
(Tex. 1994). In other words, a directed verdict is appropriate only when reasonable
minds can draw one conclusion from the evidence, and that conclusion favors the
movant. See Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 476 (Tex. App.—Houston [1st
Dist.] 2000, pet. denied).
But this review for whether “reasonable minds can draw only one conclusion
from the evidence,” id., presupposes that the party against whom the verdict was
directed had a chance to present evidence. “Basic due process requires that when a
decision maker is called upon to make a decision grounded on evidence, the parties
involved should be provided fair notice and a meaningful opportunity to present such
evidence.” United Copper Indus., Inc. v. Grissom, 17 S.W.3d 797, 805 (Tex. App—
Austin 2000, pet. dism’d).
Therefore, “a directed verdict should not be granted against a party before the
party has had a full opportunity to present its case and has rested.” Tana Oil & Gas
Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003). And if a trial court directs a verdict
12 “before the plaintiff has presented all his evidence, it is reversible error.” Nassar v.
Hughes, 882 S.W.2d 36, 38 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
II. Stowers Did Not Have a Meaningful Opportunity to Present Her Case.
The parties do not dispute these general principles. Both Stowers and Reno
agree a directed verdict is improper when the party against whom it is entered has
no opportunity to present evidence. They differ, however, on whether the trial court
proceedings gave Stowers that opportunity. Stowers claims they did not; Reno
claims they did because “[t]he trial court did not prevent her” from presenting
evidence. The question before us is thus whether Stowers had a meaningful
opportunity to present evidence.
We conclude she did not. As we explain below, the proceedings bore little if
any resemblance to a “trial,” and at no point did the trial court offer Stowers or her
counsel the chance to call witnesses, introduce documents, or present arguments.
After denying Stowers’s motion for continuance, the trial court’s immediate next
step was to hear and then grant Reno’s motion for directed verdict, without inviting
or allowing a response from Stowers, who may not have even still been on the video
call. In this scenario, a directed verdict was improper. See Tana Oil & Gas, 104
S.W.3d at 82; Wedgeworth v. Kirksey, 985 S.W.2d 115, 116 (Tex. App.—San
Antonio 1998) (directing a verdict is “reversible error if done before the plaintiff has
presented all his evidence”).
13 A. The Trial Court Proceedings Did Not Resemble a “Trial” at Which Stowers Could Present Her Case.
Early in this litigation, both Stowers and Reno made jury demands, and Reno
paid the jury fee. The parties thus perfected the right to a jury trial, on which Stowers
was entitled to rely. See TEX. R. CIV. P. 220; Mercedes-Benz Credit Corp. v. Rhyne,
925 S.W.2d 664, 666 (Tex. 1996) (“Only when a party demands a jury and pays the
fee can the opposing party rely on those actions.” (emphasis in original)); Trejo v.
Huy, No. 05-14-00310-CV, 2015 WL 4109989, at *2 (Tex. App.—Dallas July 8,
2015, pet. denied) (mem. op.) (“[A]n opposing party may rely on another party’s
jury demand, when a demand is made and the fee is paid.”). And in line with this
perfected jury demand, the trial court set the case for a “jury trial” with a venire
panel summoned and waiting.
Reno contends Stowers waived her right to a jury trial by participating in a
bench trial without objection. See, e.g., In re D.R., 177 S.W.3d 574, 580 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) (“In order to preserve a trial court’s
error in conducting a bench trial despite a party’s perfected right to a jury trial, the
party must timely object to the trial court’s action or affirmatively indicate that it
intends to exercise its right to a jury trial.”). But the problem was not that the trial
court conducted a bench trial despite Stowers’s perfected jury demand. The problem
was that the trial court conducted no trial at all, neither bench nor jury. And without
a trial, the trial court deprived Stowers of the opportunity to present her case before 14 entering a directed verdict against her. Cf. In re Commitment of James, No. 01-19-
00734-CV, 2021 WL 4597105, at *13 (Tex. App.—Houston [1st Dist.] Oct. 7, 2021,
pet. denied) (mem. op.) (“The general rule is that a trial court should not render a
directed verdict against a party before that party has had a full opportunity to present
the party’s case and has rested.”).
Despite setting the case for a jury trial, the trial court never indicated a jury
trial would begin once the proceedings began. It did not call the case, empanel a jury,
or ask the parties to proceed without a jury. Instead, it began by asking Stowers’s
counsel why he was not present in the courtroom. Appearing by videoconference,
counsel announced he was not ready due to illness and said he had filed agreed
motions for withdrawal and a continuance. The trial court then questioned Stowers’s
counsel about those motions. It began, in other words, by taking up pretrial matters.
In considering her pretrial motions, the Court joined Stowers into the video
conference. But the trial court never swore her in, and it did not ask Stowers or her
counsel whether they wished to call any witnesses, present any evidence, or make
any arguments.
The trial court then announced it was denying the motion for continuance. But
the court failed to indicate trial had begun. Instead, it offered Stowers’s counsel the
chance to travel to the courthouse, so that a trial could begin if and when he arrived.
15 When counsel responded that his medical condition would prevent him from being
there in person, the trial court immediately said it would “proceed forward.”
“Proceed forward,” though, did not mean moving forward with a trial. Again,
the trial court never suggested a trial would begin; it neither empaneled a jury nor
asked Stowers to proceed, despite both Stowers and her counsel participating by
video conference. Instead, the trial court told Stowers’s counsel that if he could not
appear in person, it would “dismiss this case for want of prosecution, or at the
election of defense counsel, they could proceed forward with a take-nothing
judgment.” Stowers thus was told judgment would be entered against her, before she
had had a chance to present evidence or argument. Any such proceeding cannot be
described as a “trial” that gives a litigant a meaningful chance to present her case.
Rules 265 and 266 of the Texas Rules of Civil Procedure confirm this is so.
Rule 265 establishes the order of proceedings in a jury trial. The party bearing the
burden of proof begins with an opening statement to the jury, followed by an opening
statement from the adverse party. See TEX. R. CIV. P. 265(a). From there, the plaintiff
introduces its evidence, and then the defendant introduces its evidence. See TEX. R.
CIV. P. 265(b). And finally, the parties are confined to rebuttal testimony. See TEX.
R. CIV. P. 265(f). Likewise, under Rule 266, the plaintiff has the right to both open
and close. See TEX. R. CIV. P. 266.
16 The trial court ignored these rules, and the proceedings bore no resemblance
to the process they describe. Stowers was not allowed to make an opening statement,
conduct voir dire, introduce any evidence through witnesses, question any of the
evidence presented by Reno, or make a closing argument. The proceedings moved
immediately from consideration of pretrial motions to a directed verdict. Stowers
was not afforded any opportunity to present her case before a directed verdict was
entered against her. See United Copper, 17 S.W.3d at 800, 805 (no “meaningful
opportunity to present evidence” where “confusing nature” of administrative
agency’s rules prevented litigant from introducing evidence). The trial court thus
denied Stowers her right to due process. See Univ. of Texas Med. Sch. at Hous. v.
Than, 901 S.W.2d 926, 930 (Tex. 1995) (“Due process at a minimum requires notice
and an opportunity to be heard at a meaningful time and in a meaningful manner.”)
(citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
B. The Trial Court Grants Reno’s Motion for Directed Verdict Without Giving Stowers an Opportunity to Respond.
After denying Stowers’s motion for continuance, the trial court immediately
turned to Reno’s counsel and asked, “How would you like to proceed?” Reno’s
counsel moved for a directed verdict, and the trial court granted it. The trial court
did so because Stowers had not presented any evidence in support of her negligence
claim, and because it concluded Reno had proved his affirmative defense of
limitations. 17 Before granting the directed verdict, the trial court did not ask either Stowers
or her counsel if they had any evidence or witnesses, nor did it ask if either had a
response to Reno’s motion. When counsel tried to interject to argue again in support
of a continuance, the trial court told him to “[p]lease be quiet. I’ve listened to it.”
The trial court did nothing to indicate it was giving either Stowers or her counsel an
opportunity to present evidence of negligence, or evidence to rebut Reno’s
limitations defense.
And while the trial court at one point earlier in the proceedings told Stowers
it was “obviously [her] right” to “come and prosecute your case,” that statement was
not the meaningful opportunity to present evidence the law requires. See Fuentes v.
Zaragoza, 555 S.W.3d 141, 166 (Tex. App.—Houston [1st Dist.] 2018, no pet.)
(“The right to be heard assumes a full hearing before a court having jurisdiction over
the matter, the right to introduce evidence, and the right to judicial findings based
on the evidence.”). The trial court never followed up by asking Stowers whether she
had new counsel, or whether she wished to testify herself, call any witnesses, present
any evidence, or make any arguments. Cf. City of Arlington v. Centerfolds, Inc., 232
S.W.3d 238, 250 (Tex. App.—Dallas 2007, pet. denied) (“‘In almost every setting
where important decisions turn on questions of fact, due process requires an
opportunity to confront and cross-examine adverse witnesses.’” (quoting Goldberg
v. Kelly, 397 U.S. 254, 269 (1970))).
18 The Texas Rules of Civil Procedure contemplate only a few circumstances in
which trial courts may forgo a trial and still render judgment on the merits, such as
in the summary judgment context (Rule 166a) or in a case submitted on an agreed
statement of facts (Rule 263). This case is not one of them. The trial court proceeded
to a verdict, without due process. Cf. Wedgeworth, 985 S.W.2d at 117 (“The purpose
of a motion for a directed verdict is to show the trial court that a cause of action does
not exist. This can only be done after the plaintiff has had full opportunity to present
their evidence.” (emphasis in original)).
This conclusion is not changed by Reno’s contention that the trial court did
not “prevent” Stowers from making her case. The dispositive question is not whether
the trial court acted affirmatively to prevent Stowers from presenting evidence and
argument, but whether it gave Stowers an opportunity to do so. See Tana Oil & Gas,
104 S.W.3d at 82 (“Ordinarily, a directed verdict should not be granted against a
party before the party has had a full opportunity to present its case and has rested.”
(emphasis added)); Para-Chem S., Inc. v. Sandstone Prods., Inc., No. 01-06-01073-
CV, 2009 WL 276507, at *20 n.17 (Tex. App.—Houston [1st Dist.] Feb. 5, 2009,
pet. denied) (mem. op.) (“Importantly, a directed verdict may only be properly
granted after the plaintiff has had the opportunity to present all of its evidence.”
(emphasis added)). The court did not.
19 Nor does it matter that the trial court relied on Reno’s limitations defense as
a basis for granting the directed verdict. His limitations defense was that while
Stowers filed suit within the limitations period, it was nonetheless time-barred
because she effected service of process after the limitations period expired and was
not diligent in doing so. See Proulx v. Wells, 235 S.W.3d 213, 217 (Tex. 2007) (“[A]
timely filed suit will not interrupt the running of limitations unless the plaintiff
exercises due diligence in the issuance and service of citation.”); see also Ashley v.
Hawkins, 293 S.W.3d 175, 179 (Tex. 2009) (“If a party files its petition within the
limitations period, service outside the limitations period may still be valid if the
plaintiff exercises diligence in procuring service on the defendant.”).
Reno supported his limitations argument with the introduction of four
documents showing that Stowers served Reno 113 days after the limitations period
expired. Reno did not offer any witness testimony or other evidence to authenticate
the documents, and it is unclear whether Stowers or her counsel even had the chance
to review them. And because there were no witnesses, neither Stowers nor her
counsel had the opportunity to cross-examine anyone about the documents. Over
objection by Stowers’s counsel, the trial court nonetheless admitted all four
documents into evidence.
Even assuming Reno’s exhibits were properly admitted, without due process,
granting a directed verdict on Reno’s limitations defense was improper. A
20 limitations defense based on a lack of diligence in effecting service is a
burden-shifting mechanism. Once established, it shifts the burden to the plaintiff to
prove diligence. See Proulx, 235 S.W.3d at 216 (“[O]nce a defendant has
affirmatively pled the limitations defense and shown that service was effected after
limitations expired, the burden shifts to the plaintiff to explain the delay. . . . Thus,
it is the plaintiff’s burden to present evidence about the efforts that were made to
serve the defendant, and to explain every lapse in effort or period of delay.” (citation
and internal quotation marks omitted)). Assuming Reno proved his limitations
defense, the burden then fell to Stowers to show she was diligent in serving Reno
with process.
While it is possible Reno is correct and Stowers was dilatory in effecting
service, such that her claims are time-barred, it is equally possible Stowers was
diligent and has a plausible explanation for the time that elapsed between the date
she filed suit and the date on which she effected service. On this record, we cannot
know. The trial court never allowed Stowers to present any witnesses, testimony, or
exhibits, so we have no indication whether she could have met the burden that shifted
to her once Reno proved his limitations defense. Cf. Stearns v. Martens, 476 S.W.3d
541, 546 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“According to basic
principles of trial procedure, a trial court should not render a directed verdict against
21 a party before that party has had a full opportunity to present the party’s case and
has rested.”).
“A motion for directed verdict may be granted only when the movant is
entitled to prevail as a matter of law, a circumstance that rarely occurs before the
non-movant has had an opportunity to offer evidence.” Safway Scaffold Co. of Hous.,
Inc. v. Safway Steel Prods., Inc., 570 S.W.2d 225, 228 (Tex. App.—Houston [1st
Dist.] 1978, writ ref’d n.r.e.). Here, the trial court afforded Stowers no such
opportunity. And as a result, it was error for the trial court to enter a directed verdict
in Reno’s favor. See Producer’s Constr. Co. v. Muegge, 669 S.W.2d 717, 719 (Tex.
1984) (“The trial court erred in rendering judgment before Producer’s had an
opportunity to present evidence and rest its case.”); Nassar, 882 S.W.2d at 38
(“reversible error” for trial court to enter directed verdict “before the plaintiff has
Because the trial court’s directed verdict was entered in error, its entry of a
take-nothing judgment based on the directed verdict was also improper. And because
our conclusion on Stowers’s first point of error decides all issues necessary to
dispose of this appeal, we do not reach her remaining arguments. See TEX. R. APP.
P. 47.1.
22 Conclusion
While we understand the trial court’s eagerness to clear its docket of older
cases, as well as its appreciation for the demands being placed on the venire
members’ time, such interests in efficiency and expediency cannot be allowed to
outweigh a litigant’s right to due process. Stowers should have been allowed the
opportunity to present her case before the trial court entertained Reno’s directed
verdict motion. Because she was given no such opportunity, we reverse the trial
court’s judgment and remand for a new trial.
Sarah Beth Landau Justice
Panel consists of Justices Kelly, Landau, and Rivas-Molloy.