Opinion
No. 09-04-410 CV
Submitted on August 18, 2005.
Opinion Delivered August 31, 2005.
On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 01-11-06790-CV.
Affirmed.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
This appeal is taken from a final summary judgment granted in favor of Mary Ellen Glass against Jeannie Webb. Finding no genuine issue of material fact on the appellant's due diligence, we affirm.
On November 5, 2001, Webb filed suit against George Glass for personal injuries resulting from a car accident occurring November 5, 1999. Citation was requested when suit was filed and delivered to a private process server on November 12, 2001. The citation was returned unserved to the district clerk's office on January 16, 2002. The reason given for not executing the citation was that George Glass died on January 9, 2001. Citation to George Glass was then reissued on September 12, 2003, and served on George's wife, Mary Glass, on September 26, 2003.
A suit for personal injury is governed by the two-year limitations period as provided by Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon 2002). The death of a person against whom or in whose favor there may be a cause of action suspends the running of an applicable statute of limitations for 12 months after the death. Tex. Civ. Prac. Rem. Code Ann. § 16.062(a) (Vernon 1997).
Glass moved for summary judgment asserting Webb's claims were barred by the statute of limitations. To toll the statute of limitations, a plaintiff must not only file suit within the limitations period but exercise due diligence in procuring the issuance and service of citation. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). Webb responded to the motion asserting due diligence was exercised. "The existence of due diligence is usually a fact question determined by a two-prong test: (1) whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances; and (2) whether the plaintiff acted diligently up until the time the defendant was served." Rodriguez v. Tinsman Houser, Inc., 13 S.W.3d 47, 49 (Tex.App.-San Antonio 1999, pet. denied). "A lack of diligence will be found as a matter of law, however, if no valid excuse for lack of service is offered, or if the lapse of time and the plaintiff's acts, or inaction, conclusively negate diligence. An offered explanation must involve diligence to seek service of process." Id. (citations omitted).
We apply a de novo standard of review to summary judgments. Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 904 (Tex.App.-El Paso 2001, pet. denied). Summary judgment is proper only when the movant shows there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); see also Tex. R. Civ. P. 166a(c). In reviewing a trial court's decision to grant summary judgment, we resolve all doubts against the movant and view the evidence in the light most favorable to the nonmovant. Shah, 67 S.W.3d at 842; Bowen, 49 S.W.3d at 904.
"When the defendant moves for summary judgment and shows that service occurred after the limitations period expired, the burden shifts to the plaintiff to offer an explanation for the delay. See Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); see also Brown v. Shores, 77 S.W.3d 884, 889-90 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (Brister, C.J., concurring) . . . This means only that the plaintiff must point to evidence that raises a fact issue on diligence." Tranter v. Duemling, 129 S.W.3d 257, 260 (Tex.App.-El Paso 2004, no pet.) (citing Brown, 77 S.W.3d at 889-90). "[A] fact issue exists if the offered explanation is reasonable or valid." Rodriguez, 13 S.W.3d at 50. "If the plaintiff satisfies this burden, the burden shifts back to the defendant to show why the explanation is insufficient as a matter of law." Tranter, 129 S.W.3d at 260 (citing Carter, 93 S.W.3d at 313; Brown, 77 S.W.3d at 889 (Brister, C.J., concurring)) (footnote omitted).
Webb's explanation for the delay is set forth in counsel's affidavit. He averred that after the process server was informed of George's death, the following occurred:
During the next several months, our office continually called the probate clerk[']s office in Harris County, Texas, as well as the district clerk's office in Montgomery County, Texas, to inquire as to weather [sic] a probate case had been opened for Mr. Glass in either county so that the representative of his estate appointed in such case could be served with the citation in this suit. We continued these efforts on at least a monthly basis through November, 2002, and each inquiry returned the same result: that no probate or estate administration procedure had been initiated for Mr. Glass' estate. Throughout this time, becuas eof [sic] Mr. Glass' death, there was no legally identifiable person to serve with process.
At this time, our office attempted to secure a copy of the death certificate of Mr. Glass, but was, again, unable to obtain the same through Harris and Montgomery Counties, each reporting that it had not received any information regarding the death of anyone by that name. We then tried, on different occasions, to acquire the same throught [sic] the State of Texas Bureau of Vital Statistics. As late as January 17, 2003, the State of Texas informed us that it had no record of the death of George Glass. Please see the documents attached hereto as Exhibit "1" to this affidavit and incorporated herein by this reference.
We sought a copy of the death certificate for George Glass in order to file a motion with the Court requesting that it issue and [sic] order to the district clerk to issue a scire facias for Mary Glass, as an heir of George Glass, requiring her to appear and defend the lawsuit. After subsequent attempts with Harris County to procure the death certificate proved fruitless, we filed anouther [sic] request form for the Court to issue new citation to Mr. Glass on September 10, 2003, and instructed Mr. Sharp to serve the same on Mary Glass, the widow of George Glass, in order to keep the suit moving until a death certificate could be had or a probate/administration action filed.
After this citation was served on or about October 2, 2003, Defendant answered and identified hereself [sic] in her capacity as heir of the estate of George Glass. Defednat [sic] filed a motion to quash service and to abate the case because citation in the name of George Glass was improper because of his death and because the Petition did not name Mary Ellen Glass in her capacity as heir of the estate of George Glass. The parties entered into agreement that the Defendant would withdraw its motion to quash and to abate if the Plaintiff agreed to amend its suit to name Mary Ellen Glass in her capacity as heir of the estate of George Glass. Plaintiff amended its petition on January 20, 2004.
On October 21, 2003, a Suggestion of Death was filed.
Attached to the affidavit is a request to the Texas Department of Health, dated December 11, 2002, seeking a verification of death. Another request was sent January 14, 2003. The Department replied on January 17, 2003, that a search of their files failed to show a record registered in the name provided.
The letter indicates "SEARCH 2002 TO PRESENT." A date of death was not provided in either request for verification.
On appeal, Webb claims because a reasonable explanation for the delay was given, the question of diligence is a fact question for the jury to decide. Glass asserts Webb has failed to explain every period of delay. Specifically, Webb argues there is no evidence of activity or attempts to effectuate service from January 17, 2003, until September 10, 2003, a lapse of nine months.
According to counsel's affidavit, from January until September of 2003, attempts were being made to secure a death certificate from Harris County in order to secure a scire facias. However, counsel's only proffered explanation for the time period from January 17, 2003 through September 10, 2003, is ". . . subsequent attempts with Harris County to procure the death certificate proved fruitless, . . ." with no specific actions or efforts expressly set forth in his affidavit. The duty to use due diligence continues from the date suit is filed until the defendant is served. Eichel v. Ullah, 831 S.W.2d 42, 44 (Tex.App.-El Paso 1992, no writ). Even though counsel was faced with a perplexing situation with the death of the defendant before suit was filed, Texas law suspends the applicable limitations period for twelve months to provide for this contingency. See Tex. Civ. Prac. Rem. Code Ann. § 16.062(a). "The primary purpose of a statute of limitations is to compel the exercise of a right within a reasonable time so that the opposite party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds." Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975). The Texas Supreme Court has held that where an individual whose conduct allegedly gave rise to an action has died, suit is properly brought against the decedent's personal representative or, if unavailable, the heirs or beneficiaries. Rooke v. Jenson, 838 S.W.2d 229, 230 (Tex. 1992). Webb has failed to provide this Court, nor has this Court discovered, any precedent holding that scire facias cannot issue against the heirs of a deceased defendant upon suggestion of death without a certified copy of a death certificate. The unexplained period of nine months in this case, without any activity seeking service of process, after the applicable limitations period has been suspended for twelve months, conclusively negates diligence as a matter of law, and the trial court correctly entered summary judgment against Webb.
The judgment of the trial court is affirmed.