Richard Hightower, Justice

On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2019-12455

Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.

MEMORANDUM OPINION

Richard Hightower, Justice

Appellant Nancy English sued appellee Emily Record on the last day of the limitations period following an automobile collision. English did not effect service on Record until approximately eight months later, after the statute of limitations had run. Record moved for summary judgment on limitations ground, and the trial court granted the motion, dismissing English's claim against Record. In her sole issue on appeal, English argues that the trial court erred in granting summary judgment on limitations. Because we conclude that Record presented sufficient evidence to raise a fact issue on diligence of service, we reverse and remand for further proceedings.

Background

English alleged that on February 19, 2017, she was struck in a collision with Record. English asserted that she and Record were "traveling northbound on SH 288 North between Southmore and Tuam when [Record] . . . suddenly and without warning, struck plaintiff [English's] vehicle in the rear-end, causing [English] to collide with the vehicle in front of her." English filed her original petition against Record on February 19, 2019, exactly two years after the accident occurred.

On March 13, 2019, English's counsel requested the citation for service for Record. Citation was issued on March 18, 2019, and English's process server collected the citation on March 22. Two different services made more than 10 attempts to serve Record, starting on April 24, 2019, at addresses found in the police report for the accident, through online investigation, and following a "skip trace" performed to find her current address. Counsel also moved for permission to serve Record through substitute service. English successfully served Record on October 15, 2019.

Record answered, pleading the statute of limitations as an affirmative defense, and she moved for summary judgment on limitations grounds. She asserted that, although English had filed the lawsuit within the applicable limitations period, English had failed to use reasonable diligence in serving notice of the suit. Record asserted that she did not receive service until October 15, 2019, nearly eight months after the petition was filed and two years and eight months after the accident occurred. As summary judgment evidence, Record included the original petition and the affidavit filed with the motion for substitute service, indicating that English attempted to serve Record at the school where Record worked numerous times between July 12, 2019, and August 9, 2019.

English responded to the motion for summary judgment asserting that she had used reasonable diligence in attempting to serve Record. In addition to evidence of her attempts at serving Record obtained from the process server, English provided the affidavit of her counsel describing his efforts in seeking service on Record. In addition to obtaining a trusted process server, English's attorney undertook his own investigation into Record's whereabouts, discovering additional potential residential addresses and the address of the school where Record was employed. English's attorney had frequent communications with the process server, encouraging them to serve Record as soon as possible, but after repeated failed service attempts, counsel moved for substitute service of process. While waiting for a ruling on that motion, counsel obtained a new process server who successfully served Record at the school on October 15, 2019.

The trial court granted Record's motion for summary judgment and dismissed English's claims against her. This appeal followed.

Summary Judgment

In her sole issue on appeal, English argues that the trial court erred in granting summary judgment on limitations grounds.

A. Standard of Review

To prevail on a traditional summary judgment motion, the movant bears the burden of proving that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); Cleveland v. Taylor, 397 S.W.3d 683, 697 (Tex. App.-Houston [1st Dist.] 2012, pet. denied). When a defendant moves for a traditional summary judgment, it must either (1) disprove at least one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff's cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

To determine if the nonmovant raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827); Cleveland, 397 S.W.3d at 697. We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)); Cleveland, 397 S.W.3d at 697. A genuine issue of material fact is raised when the nonmovant produces more than a scintilla of evidence regarding the challenged element. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013).

B. Limitations

Record moved for summary judgment on the ground that English failed to use diligence in serving notice of the suit outside the two-year limitations period. See Tex. Civ. Prac. & Rem. Code § 16.003(a) (prescribing two-year statute of limitations for personal injury suits). To "bring suit" within the applicable limitations period, a plaintiff must both file suit within the limitations period and use due diligence to serve the defendant with process. Auten v. DJ Clark, Inc., 209 S.W.3d 695, 698 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (citing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)).

Thus, if a plaintiff files her petition within the limitations period but obtains service on the defendant outside of the limitations period, such service is valid if the plaintiff exercised "diligence" in procuring service. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); see also Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (holding that "a timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation"). If a plaintiff diligently effects service after the expiration of the limitations period, the date of service relates back to the date of filing. Proulx, 235 S.W.3d at 215.

If a defendant affirmatively pleads the defense of limitations and shows that service occurred after the limitations deadline, the burden shifts to the plaintiff to prove diligence. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216. The plaintiff then must present evidence regarding the efforts made to serve the defendant and "explain every lapse in effort or period of delay." Proulx, 235 S.W.3d at 216. "[T]he relevant inquiry is whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served." Id.

The question of the plaintiff's diligence in obtaining service is generally one of fact to be determined by examining the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service. Id. However, a plaintiff's explanation of his efforts to obtain service may demonstrate a lack of diligence as a matter of law when one or more lapses between service efforts are unexplained or patently unreasonable. Id. If the plaintiff's explanation for the delay raises a material fact issue concerning the diligence of service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of law, the plaintiff provided an insufficient explanation. Id.

C. Analysis

Record affirmatively pled the defense of limitations and a lack of diligence in service of process, and she showed that service of process occurred after the limitations period. She presented the petition, filed on February 19, 2019, exactly two years after the accident occurred, and the return of service showing that she was finally served with citation on October 15, 2019, approximately eight months after the limitations period expired. Accordingly, the burden shifted to English to prove diligence. See Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216.

English filed suit on February 19, 2019, and less than a month later, on March 13, 2019, she requested the citation for service. The citation was issued on March 18, 2019, and retrieved by English's process server. The first attempt to serve English occurred on April 24, 2019, when the process server went to the address listed in the police report from the accident. The process server reported that the man at that address claimed to be Record's father. He stated that Record no longer lived at that address, and he provided a different address for Record. On May 3, 2019, the process server attempted service at the address provided by Record's father. The man who answered the door at the second address stated that Record did not live there, and he did not know her. Subsequently, however, English's attorney discovered through social media accounts that he was in a romantic relationship with Record.

English's attorney also investigated further and discovered a third potential residential address and the location of the school where Record taught. Several more unsuccessful attempts at service were made in May 2019. On June 6, 2019, the process served attempted to serve Record at her then-boyfriend's house. On July 12, August 1, August 7, and August 9, the process server tried to serve Record at the school where she worked. He was told on July 12 that Record had left for the summer and would not return until August 1. On August 1, he was told that she was in training but then was later told she had left the campus for the day. None of these attempts at service were successful.

On September 6, 2019, English moved to obtain substitute service, asking to effect service on any adult in the front office of the school where Record worked. While waiting for the trial court to rule on this motion, counsel obtained a second process server who made one more attempt to serve Record at the school where she worked and was ultimately successful in serving citation on Record on October 15, 2019.

This timeline of events does contain some gaps-most significantly, the three-week delay between the filing of the petition on February 19, 2019, and counsel's request for citation of service; the approximately one-month delay between the issuance of the citation on March 18 and the process server's first attempt at service on April 24; and the approximately six-week delay between the September 6 motion for substitute service and the successful service of citation on October 15. English's attorney provided an affidavit explaining the delays. He was occupied with other work for the initial three-week delay between filing and the request for citation. He stated that he worked his active cases on a "rotating" system. Once he ensured that the suit was filed within the limitations period, he rotated to working on other "pressing matters" before he turned again to English's case.

Neither counsel nor the process serving service could fully explain why there was a one-month gap between the March 22 issuance of citation and the first attempt at service on April 24. However, counsel stated in his affidavit that he had regularly worked with the process server in the past and found the company to be reliable. Counsel further explained that he communicated regularly with the process server and conducted investigations to assist in discovering some of the addresses associated with Record. Counsel waited for a few weeks after moving for substitute service to obtain a ruling from the trial court before trying to serve Record again. Counsel then decided to hire a second process server, who was eventually successful in serving Record. He averred that some of the difficulty in serving Record stemmed from her efforts to "elude" the process server and from misdirection by Record's "associates."

Thus, the record reflects multiple attempts at service at multiple addresses over the eight months between filing of the petition on February 19, 2019, and the successful service on October 15. The fact that some periods of time elapsed between service efforts does not conclusively demonstrate that English was not exercising diligence in her efforts to locate and serve Record. See Proulx, 235 S.W.3d at 217. The foregoing evidence constitutes more than a scintilla of evidence raising a question of fact regarding whether English "acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time [Record] was served." See id. at 216 (holding that question of plaintiff's diligence in obtaining service is generally one of fact to be determined by examining time it took to secure citation, service, or both, and type of effort or lack of effort plaintiff expended in procuring service). The burden then shifted back to Record to conclusively show why, as a matter of law, English provided an insufficient explanation. See id.

Record argues that it was "clearly unreasonable" for counsel to delay requesting citation for three weeks. Record argues that it was unreasonable for counsel to use a "rotating" system to deal with his cases that resulted in an urgent matter-such as requesting citation for a case filed at the very end of the limitations period-being delayed. We observe, however, that reasonable diligence is typically a fact issue. See id. English emphasizes that counsel's explanation of his "rotation system is a reasonable explanation only in light of the short duration of the delay," stating that "a twenty-two (22) day lapse between the filing of the petition and the request for issuance of citation . . . is reasonably explained by a rotation system." See, e.g., id. at 214-15 (holding, in case with 18-day delay between plaintiff's filing and process server's receiving citation, that defendant did not establish lack of diligence as matter of law). Given the length of the delay, we cannot say, as a matter of law, whether it was unreasonable for counsel to work on other "pressing matters" for three weeks before requesting citation in English's case.

Record further points to the fact that the first attempt at service did not occur until April 24, 2019, which was 64 days after limitations ran. She argues that "English does not and cannot explain why there was absolutely no attempted service for more than a month after the citation was picked up" by the process server. The process serving company provided records demonstrating that the server who picked up the citation was no longer with the company, and, thus, the company could not explain the delay. English's counsel stated in his affidavit, however, that he had worked with that particular company for more than two years, that he trusted the company's performance, and that he followed the same steps to procure service in this case that he had followed successfully in previous cases. Record correctly points out that "it is the responsibility of the person requesting service, not the process server, to see that service is properly accomplished." Auten, 209 S.W.3d at 700 (citing Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 621 (Tex. App.- Corpus Christi 2000, pet. denied); Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.-Corpus Christi 1994, no writ) (holding that "mere reliance" and "misplaced reliance" on process server do not constitute due diligence). Courts have also recognized, however, that reliance on a process server may constitute reasonable diligence in some circumstances. See Auten, 209 S.W.3d at 700-01 (observing that Roberts and Gonzalez did not hold that using process server can never constitute reasonable diligence). We also observe that "[a] plaintiff is not required to use the highest degree of diligence to procure service, but is required to use the degree of diligence that an ordinarily prudent person would have used under the same or similar circumstances." Id. at 698-99. Considering that nature of the summary judgment evidence, Record did not establish, as a matter of law, that English's reliance on the process server was unreasonable.

Finally, Record identifies several other delays. She points to the delay between the August 9, 2019 attempt to serve her at the school and the September 6, 2019 motion for substitute service. During this period, however, counsel averred that he was looking for alternate means to serve Record after numerous unsuccessful attempts at multiple addresses and that he believed some of the delays were attributable to Record's own attempts to elude service and misdirect the process server. Counsel obtained an affidavit from the process server on August 15, 2019, and he filed the motion on September 6. Record also points to the delay between the filing of the motion for substitute service on September 6 and October 15, when she was finally served with citation by a new process server. Again, counsel explained that he initially waited to obtain a ruling on his motion for substitute service before hiring a second process server. We cannot say this was unreasonable as a matter of law. See Proulx, 235 S.W.3d at 216-17 (determining that fact issue existed on issue of diligence despite nine-month delay between filing and successful service of process-including gaps in attempts at service ranging between three weeks and five months-based in part on facts that plaintiff "utilized two process servers and two investigators in attempting to locate an address at which service could be effected," that "thirty service attempts were made at five different addresses," and that some difficulties in effecting service were attributed to defendant's frequent moves to avoid service).

Viewing all the evidence and its reasonable inferences in the light most favorable to English, as we must, we hold that a fact issue exists concerning whether she exercised due diligence in effecting service on Record. See Fielding, 289 S.W.3d at 848; Cleveland, 397 S.W.3d at 697. Accordingly, Record did not establish a lack of diligence as a matter of law, and summary judgment was improper. See Proulx, 235 S.W.3d at 216-17.

We sustain English's sole issue.

Conclusion

We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.