Opinion
No. 10-06-00364-CV
Opinion delivered and filed July 18, 2007.
Appeal from the 19th District Court McLennan County, Texas Trial Court No. 2004-993-1.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
The sole issue in this appeal of a summary judgment is whether the defendant conclusively proved that the plaintiff failed to exercise due diligence in having the defendant served with process. Because the standard for due diligence is the reasonable person standard, there was an excuse given for the delay, that being the confusion created by another lawyer having already filed a suit on behalf of the plaintiff and new procedures in the district clerk's office, and because the delay in obtaining service of the citation was very brief, we hold that the defendant did not conclusively establish that the plaintiff failed to exercise due diligence, and reverse the trial court's judgment and remand this appeal for further proceedings.
To "bring suit" within the limitations period, a plaintiff must not only file suit within the applicable limitations period, but must also use diligence to have the defendant served with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970). When a plaintiff files a petition within the limitations period, but does not serve the defendant until after the statutory period has expired, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Gant, 786 S.W.2d at 260. 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. Beavers v. Darling, 491 S.W.2d 711, 714 (Tex.Civ.App.-Waco 1973, no writ). See Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 127 (Tex.App.-Texarkana 1986, no writ).
To obtain summary judgment on the grounds that an action was not served within the applicable limitations period, the movant in a traditional motion for summary judgment proceeding must show that, as a matter of law, due diligence was not used to effectuate service. Gant, 786 S.W.2d at 260. See Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975) (per curiam); Brown v. Shores, 77 S.W.3d 884, 887 (Tex.App.-Houston [14th Dist.] 2002, no pet.). "Generally, the question of diligence is a question of fact, but if no excuse is offered for a delay in the service of citation, `or if the lapse of time and the plaintiff's acts are such as conclusively negate diligence, a lack of diligence will be found as a matter of law.'" Belleza-Gonzalez v. Villa, 57 S.W.3d 8, 12 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Valdez, 715 S.W.2d at 127. When a defendant has affirmatively pled the defense of limitations and shown that the plaintiff failed to timely serve the defendant, the burden shifts to the plaintiff to raise due diligence in obtaining service as a counter-defense which is most often done by making an explanation of the delay or an explanation of what efforts were used to serve the defendant. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); Brown, 77 S.W.3d at 887; see also Belleza-Gonzalez, 57 S.W.3d at 11. Once the plaintiff raises the issue of due diligence, the burden shifts back to the defendant to negate due diligence as a matter of law. See Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); see also Belleza-Gonzalez, 57 S.W.3d at 11.
We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id.
As an example of a situation in which the movant was successful in establishing, as a matter of law, that the plaintiff did not exercise the requisite diligence, in Zale the uncontroverted summary judgment proof established that plaintiffs failed to use diligence to obtain service on defendant during three extended periods in the six years it took plaintiffs to serve defendant. And in Gant, the Court noted that the affidavits of plaintiffs' own counsel filed in opposition to defendant's motion for summary judgment showed that plaintiffs did nothing to obtain service on defendant during three periods of more than six months, twenty months, and twelve months each. Texas courts have consistently held that due diligence was lacking as a matter of law based on unexplained lapses of significant amounts of time. See, e.g., Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180 (Tex. 1970) (17½ months between filing and service); Liles v. Phillips, 677 S.W.2d 802 (Tex.Civ.App. — Fort Worth 1984, writ ref'd n.r.e.) (10 months between expiration of statute of limitations and service); Allen v. Bentley Laboratories, Inc., 538 S.W.2d 857 (Tex.Civ.App.-San Antonio 1976, writ ref'd n.r.e.) (6 months between filing and service); Williams v. Houston-Citizens Bank Trust Co., 531 S.W.2d 434 (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref'd n.r.e.) (7-2/3 months between expiration of first citation and issuance of second citation); Buie v. Couch, 126 S.W.2d 565 (Tex.Civ.App.-Waco 1939, writ ref'd) (7-1/4 months between filing and issuance of citation and one month between issuance and service).
The following timeline is relevant to the determination of this appeal.
1 March 11, 2004. First suit filed. No citation issued.
2 Change of attorneys.
3 March 16, 2004. Second suit filed. One citation requested to be returned to plaintiff's counsel.
4 March 17, 2004. Citation delivered to counsel.
5 March 22, 2004. Statute of limitations runs.
6 April 7, 2004. Citation delivered to private process server for service upon the defendant.
7 April 12, 2004. Defendant is served 27 days after the second suit is filed.
The defendant moved for summary judgment based upon the statute of limitations defense. The plaintiff responded that service of citations was achieved shortly after limitations ran and that because he exercised due diligence in obtaining service, it relates back to the date suit was filed and therefore limitations had not run.
Because the nonmovant responded to the limitations defense by raising due diligence in obtaining service, the movant had to negate due diligence as a matter of law. It therefore became the movant's burden in this summary judgment proceeding to show what the nonmovant did to obtain service with sufficient proof to conclusively establish that the nonmovant failed to exercise due diligence to obtain service. Although the movant explained how easy it would have been to obtain service upon the movant during the 27 days between filing of the suit and actual service of the citation, the movant did not establish what efforts, if any, the nonmovant performed to obtain service and thus did not affirmatively negate due diligence in obtaining service. While the nonmovant's description for the delay was weak and provided only some explanation for the delay, it was not the nonmovant's burden in this traditional motion for summary judgment proceeding to establish due diligence. Rather it was the movant's burden to negate due diligence, which the movant failed to do. See Taylor v. Rellas, 69 S.W.3d 621, 623 (Tex.App.-Eastland 2002, no pet.) (finding a fact issue on due diligence although process servers took over a month to serve defendant and this period included fifteen-day and twenty-day delays between attempts). Further, it is not the period of delay, but rather the diligence in pursuing service of process, that is the determinative factor. See Johnson v. City of Houston, 203 S.W.3d 7, 20 (Tex.App. — Houston [14th Dist.] 2006, pet. filed); Zacharie v. U.S. Nat. Res., Inc., 94 S.W.3d 748, 754 (Tex.App.-San Antonio 2002, no pet.).
The trial court's judgment is reversed, and this proceeding is remanded to the trial court for further proceeding consistent with this opinion.