Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Friday, May 27, 2011

Due Diligence in Service Requirement when suit filed at end of limitations period

Is a claim filed before expiration of the statute of limitations time-barred if citation is not served until after the limitations period has ended? A person must bring suit for personal injury no later than two years after the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 3 2010). “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.” Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). When a defendant affirmatively pleads the defense of limitations and shows that service was untimely, the burden shifts to the plaintiff to prove diligence. Id. The relevant question 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.” Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). “Although a fact question, a plaintiff‟s explanation may demonstrate a lack of diligence as a matter of law, „when one or more lapses between service efforts are unexplained or patently unreasonable.‟” Ashley, 293 S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216). The plaintiff bears the burden of presenting evidence regarding the efforts made to serve the defendant, and explaining every lapse in effort or period of delay. Proulx, 235 S.W.3d at 216. SOURCE: Beaumont Court of Appeals - 09-11-00076-CV - 5/26/11

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