Filing lawsuit just before expiration of limitations but failing to serve Defendant promptly ....

AVOIDING LIMITATIONS

Diligence in serving the Defendant is critical 

When a plaintiff files suit within the limitations period, but obtains service on the defendant outside of the limitations period, the service may still be 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) ("[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 obtains service after the expiration of the statute of limitations, 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 must then 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.
 
A plaintiff's explanation of the efforts in obtaining 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. Although the clerk of the court has the duty, upon the plaintiff's request, to issue and deliver the citation as directed, and although a party "may ordinarily rely on the clerk to perform his duty within a reasonable time," the ultimate responsibility to ensure that citation was served on the defendant still rests with the plaintiff. Bilinsco Inc. v. Harris Cnty. Appraisal Dist., 321 S.W.3d 648, 652 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (quoting Boyattia v. Hinojosa, 18 S.W.3d 729, 733-34 (Tex. App.-Dallas 2000, pet. denied). A plaintiff "who wholly ignores her duty to have the citation served on the defendant during a lengthy period of time [in which] the citation remains with the clerk does not manifest a bona fide intention to have process served." Boyattia, 18 S.W.3d at 734. Any deficiency in the server's performance is imputed to [ Plaintiff ]. Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.-Corpus Christi 1994, no writ).

A court looks to "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." Proulx, 235 S.W.3d at 216; see also Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. App.-Dallas 2009, no pet.) ("Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the filing of the suit, issuance of the citation, and service of process."). It is the responsibility of the one requesting service to see that service is properly accomplished. Tex. R. Civ. P. 99(a); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994). [ Plaintiff ] does not adequately explain her effort in procuring service during the more than four months after she filed suit and more than three months after the limitations period expired. See Boyattia, 18 S.W.3d at 734 (Plaintiff's failure to take any action during the clerk's three-month delay in delivering the citation constituted a lack of diligence as a matter of law.); Webster v. Thomas, 5 S.W.3d 287, 288-90 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (Plaintiff failed to use due diligence as a matter of law, in part, because evidence showed that during three month period from filing suit to issuance of citation, plaintiff called wrong clerk's office when inquiring about issuance of citation.). [ Plaintiff ]'s issue is overruled. The trial court did not err in granting summary judgment. The judgment is affirmed

SOURCE: Beaumont Court of Appeals - 09-10-00157-CV - 6/16/11

LEADING TEXAS SUPREME COURT CASE: Proulx v. Wells, 235 S.W.3d 213, 215 (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."); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990) (same).
 
CASELAW CLIPS FROM OTHER COURTS ON DILIGENCE IN SERVING THE DEFENDANT 

Due diligence requires that the plaintiff exercise "that diligence to procure service which an ordinarily prudent person would have used under the same or similar circumstances." Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.-Corpus Christi 1994, no writ). It also requires that the plaintiff diligently pursue service on the defendant. Hodge, 856 S.W.2d at 215. Although the question of diligence is generally a fact question, a plaintiff may demonstrate a lack of diligence as a matter of law, "when one or more lapses between service efforts are unexplained or patently unreasonable." Proulx, 235 S.W.3d at 216. 

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 and was diligent up until the time the defendant was served. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex.2007); see Tate v. Beal, 119 S.W.3d 378, 381 (Tex. App.-Fort Worth 2003, pet. denied). Generally, the question of the plaintiff's diligence 370*370 in effecting service is one of fact, and diligence is 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. Proulx, 235 S.W.3d at 216; see Webster v. Thomas, 5 S.W.3d 287, 289-90 (Tex.App.-Houston [14th Dist.] 1999, no pet.). 

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 explanation is insufficient. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). Whether a plaintiff acted with due diligence is generally a question of fact. Eichel v. Ullah, 831 S.W.2d 42, 43 (Tex. App.-El Paso 1992, no writ). The question of due diligence may be answered as a matter of law only when a delay in service is "unexplained or patently unreasonable." Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam). Whether diligence is lacking as a matter of law is a conclusion of law to be reviewed de novo. See, e.g., Ashley v. Hawkins, 293 S.W.3d 175, 180-81 (Tex. 2009). We will uphold the trial court's conclusion of law if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Lack of diligence may be found even in the face of an offered explanation, if that explanation affirmatively establishes lack of reasonable diligence. Id. When a defendant has affirmatively pleaded the defense of limitations and shown that service was not timely, as International Fidelity has done here, the burden shifts to the plaintiff to prove diligence. Id. (citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990)). 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 explanation is insufficient. Id. 
  
OLDER CASES ON DILIGENCE IN PROCURING SERVICE OF CITATION 
  
Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970) (holding lack of diligence existed as matter of law when respondents waited seventeen months after learning of improper service to correct it); Perkins v. Groff, 936 S.W.2d 661, 668 (Tex. App.-Dallas 1996, writ denied) (upholding summary judgment because there was "no explanation for the delay" in service); Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.) (holding lack of diligence existed as matter of law when appellee "offered no explanation whatsoever concerning the delay between filing suit and service of citation"); Allen v. Bentley Labs, Inc., 538 S.W.2d 857, 860 (Tex. Civ. App.-San Antonio 1976, writ ref'd n.r.e.) (upholding summary judgment finding lack of diligence as matter of law when appellant "did not plead or offer any excuse for the delay of almost six months in serving [appellee]"); Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434, 436 (Tex. Civ. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.) (upholding judgment finding lack of diligence as matter of law when appellee "offered no explanation of the delay between issuance of the first and second citations"); Buie v. Couch, 126 S.W.2d 565, 567 (Tex. Civ. App.-Waco 1939, writ ref'd) (holding, when appellee failed to ascertain whether the clerk had prepared citation, that "[s]uch conduct on his part, without any excuse therefore, is wholly inconsistent with due diligence and constitutes negligence as a matter of law"). Furthermore, case law supports the existence of a fact question when a plaintiff attempts timely service, but miscommunications or mistakes by the district clerk's office unknown to the plaintiff result in service being unsuccessful. See Hodge v. Smith, 856 S.W.2d 212, 217 (Tex. App.-Houston [1st Dist.] 1993, writ denied); Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 128 (Tex. App.-Texarkana 1986, no writ).