Opinion
05-22-00471-CV
05-15-2023
CODY PERSHING BARBER, Appellant v. ROBERT F. BURNS, Appellee
On Appeal from the County Court at Law No. 2 Kaufman County, Texas Trial Court Cause No. 108102-CC2
Before Justices Partida-Kipness, Smith, and Breedlove
MEMORANDUM OPINION
MARICELA BREEDLOVE JUSTICE
The trial court granted appellee Robert F. Burns' traditional motion for summary judgment on limitations. Appellant Cody Pershing Barber appeals, complaining that competent summary judgment evidence raised a genuine issue of material fact regarding Barber's exercise of due diligence in serving Burns. Concluding that the affidavit provided by Barber's counsel constitutes sufficient evidence to raise a genuine issue of material fact, we reverse the trial court's judgment.
I. BACKGROUND
This case arises from an automobile accident that occurred on May 23, 2019. Barber sued Burns, alleging that Barber sustained damages as a direct and proximate result of a collision that occurred when Burns struck Barber's vehicle after failing to yield the right-of-way while attempting a left turn. Barber filed suit on May 24, 2021, two years and one day after the date of the collision. Burns initially challenged the suit as untimely but ultimately conceded that Barber filed suit within the limitations period, which was extended to May 24, 2021 because limitations ran on a Sunday. See Tex. R. Civ. P. 4. The Kaufman County District Clerk issued citation on May 24, 2021. Barber did not serve Burns with the petition and citation until June 22, 2021.
On December 22, 2021, Burns filed a traditional motion for summary judgment on limitations, arguing that Barber failed to exercise due diligence in perfecting service after the applicable statute of limitations ran. Barber filed his response on February 10, 2022. To his response, Barber attached an affidavit from Matthew R. Patton, IV, Barber's counsel, discussing the steps taken by counsel to effectuate service.
According to the affidavit, Patton received the citation on the evening of May 24, 2021, and he gave the citation to his regular process server, Amelia Taylor, on May 26, 2021, because he was out of the office the prior day. A week later, Taylor returned it, stating she could not make the trip from Gilmer to Terrell to effectuate service. Patton then attested that on June 3, 2021, he located a constable in Kaufman County willing to serve the citation, and Patton mailed the citation to him via regular mail the following day. The return of service shows that the constable received it on June 15, 2021. Citation was actually served on June 22, 2021, 29 days after the limitations period expired.
The trial court heard Burns' motion for summary judgment on February 17, 2022, and granted it by written order on April 18, 2022. Barber now appeals. In one issue, Barber complains that the trial court erred in granting summary judgment because competent summary judgment evidence showed that Barber exercised due diligence in serving Burns. In response, Burns argues that Barber did not raise a genuine issue of material fact regarding his use of due diligence in serving Burns after the limitations period expired.
II. STANDARD OF REVIEW
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). Our review is limited to consideration of the evidence presented to the trial court. Seay-King v. Alford, No. 05-20-01113-CV, 2022 WL 1284170, at *3 (Tex. App.-Dallas April 29, 2022, no pet.) (mem. op.) (citing Mathis v. Restoration Builders Inc., 231 S.W.3d 47, 52 (Tex. App.-Houston [14th Dist.] 2007, no pet.)).
III. APPLICABLE LAW
In his sole issue, Barber urges that summary judgment on limitations grounds was improper because he raised an issue of material fact concerning his diligence in having citation issued and served. We agree.
A traditional summary judgment motion may be granted when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Tex.R.Civ.P. 166a(c); Tex. Com. Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002). To defeat a plaintiff's cause of action on a traditional motion for summary judgment, a defendant must either conclusively negate at least one element of each of the plaintiff's theories or recovery or conclusively establish each element of an affirmative defense, thereby rebutting plaintiff's claim. Pollard v. Hanschen, 315 S.W.3d 636, 638 (Tex. App.-Dallas 2010, no pet.). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 577 (Tex. App.-Dallas 2007, no pet.).
Here, Burns sought traditional summary judgment on his affirmative defense of limitations. To obtain summary judgment on the basis that citation was not served within the applicable limitations period, the movant must show that, as a matter of law, diligence was not used to effectuate service. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975).
Personal injury claims must be brought "not later than two years after the day the cause of action accrues." Tex. Civ. Prac. & Rem. Code Ann. § 16.003. Generally speaking, the plaintiff must both file suit and serve the defendant within the limitations period. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). When a lawsuit is filed within the limitations period but the defendant is served after limitations has expired, the date of service may relate back to the date of filing if the plaintiff shows the exercise of due diligence in effectuating service. Id. at 260. In a summary judgment proceeding, once the defendant proves that service occurred after limitations expired, the burden shifts to the plaintiff to explain the delay and to raise a fact question regarding diligence of service. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).
Whether the plaintiff exercised diligence in obtaining service 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. Seay-King, 2022 WL 1284170, at *5 (citing Keeton v. Carrasco, 53 S.W.3d 13, 18 (Tex. App.-San Antonio 2001, pet. denied). The plaintiff may avoid summary judgment on limitations if its explanation for the delay raises a material fact issue concerning the diligence of service efforts. Draughon v. Johnson, 631 S.W.3d 81, 93-94 (Tex. 2021). A lack of diligence can be found as a matter of law only if: (1) no valid excuse for lack of service is offered; or (2) the lapse of time and the plaintiff's acts or inaction conclusively negate diligence. Seay-King, 2022 WL 1284170, at *5 (citing Keeton, 53 S.W.3d at 18). An unexplained delay in effecting service constitutes a lack of due diligence. Parsons v. Turley, 109 S.W.3d 804, 808 (Tex. App.-Dallas 2003, pet. denied).
To raise a fact issue on diligence, the plaintiff must explain "every lapse in effort or period of delay." Proulx, 235 S.W.3d at 216. And although the question of diligence is typically a fact question, it can be resolved as a matter of law if "one or more lapses between service efforts are unexplained or patently unreasonable." Id. The plaintiff must show continuous diligence from the filing of the suit up until the date that the defendant is served. Id.; Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex. App.-Dallas 2000, pet. denied). But if the plaintiff's excuse is legally invalid, it does not matter if service was completed even in a relatively short period of time after filing. See id. (internal citations omitted).
Barber argues throughout much of his brief that the delay in this case of 29 days is not patently unreasonable because courts have found due diligence in cases with similar or far longer delays in service and have denied summary judgment motions on that basis. Contrary to Barber's arguments, length of time alone is not dispositive. See, e.g., Ashley v. Hawkins, 293 S.W.3d 175, 181 (Tex. 2009); Sharp v. Kroger Texas L.P., 500 S.W.3d 117, 120-21 (Tex. App.-Houston [14th Dist.] 2016, no pet.).
IV. DISCUSSION
It is undisputed that Barber filed suit within the two-year statute of limitation applicable to his negligence claim and that he effectuated service on Burns 29 days after he filed his petition and after limitations ran. Thus, we agree with Burns' contention that the burden shifted to Barber to "present evidence regarding the efforts that were made to serve the defendant, and to explain every lapse in effort or period of delay." See Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). Burns argues that Barber's reliance on process servers does not qualify as due diligence and that Barber's excuse is thus invalid as a matter of law. In support of his contention, Burns relies on the opinions of our sister courts in Roberts v. Padre Island Brewing Co., 28 S.W.3d 618 (Tex. App.-Corpus Christi 2000, pet. denied) and Flanigan v. Nekkalapu, 613 S.W.3d 361 (Tex. App.-Fort Worth 2020, no pet.).
In Roberts, a former employee filed an employment discrimination claim against Padre Island Brewing Co, Inc., alleging that the company terminated her due to her pregnancy. Roberts, 613 S.W.3d at 319. Although she timely filed her petition in district court, Roberts did not serve the defendant with citation until 68 days after the expiration of limitations. Id. The court granted the defendant's motion to dismiss after finding that Roberts failed to use due diligence to timely serve the defendant. Id.
Roberts' counsel hired a local process server who was recommended by the district clerk's office. Id. at 620. That process server never served the defendant; another individual ultimately achieved service. Id. at 621. Roberts argued that she exercised due diligence because she repeatedly attempted to contact the process server as well as the clerk's office to inquire about the status of service. Id. The court held that Roberts' acts "do not constitute due diligence because it is the responsibility of the person requesting service, and not the process server, to see that service is properly accomplished." Id. (citing Tex.R.Civ.P. 99(a)). The court held that reliance on the process server does not constitute due diligence in attempting service of process. Id. (internal citation omitted). The Roberts court set the standard that "a reasonable person in the same or similar circumstance would have employed an alternate process server, a constable, or would have attempted service through other alternative court approved methods such as service through a court appointed third party." Id. (internal citations omitted). Ultimately, the court held that "although the existence of diligence is usually a question of fact, a lack of diligence exists as a matter of law because it is clear that appellant did not exhaust all of the alternatives available to achieve proper service." Id. at 622 (internal citations omitted).
In Flanigan, a patient filed a health care liability suit against her doctor alleging negligence. Flanigan, 613 S.W.3d at 361. One week after filing suit, Flanigan's attorney requested the issuance of citation. Id. at 363. Flanigan's attorney received the citation from the clerk four days later but then waited nine days to forward it to a process server. Id. According to Flanigan's attorney, during the four-and-a-half week span that followed, he had "several conversations" with the process server to determine the status of service. Id. The process server claimed in his affidavit that he had trouble locating the defendant and also that he was holding various part-time jobs that limited his ability to attempt service. Id. He did not share this difficulty with Flanigan's attorney until over a month later, however. Id.
The parties in Flanigan dispute whether suit was filed within the applicable statute of limitations; Flanigan argued that limitations was tolled, whereas Nekkalapu argued that it expired approximately two months prior to the date Flanigan filed suit. Id. at 364. The Flanigan court assumes, without deciding, that limitations was tolled. Id. at 365.
According to Flanigan's attorney, once the process server disclosed this information to him, he instructed him to stop any further attempts to serve the defendant. Id. The attorney then waited ten more days to hire another process server. Id. at 363-64. That process server finally served the defendant more than two months after Flanigan filed suit. Id. at 364.
Like in Roberts, the crux of Flanigan's argument is that she exercised due diligence by placing her faith in the process server to effectuate service in a diligent manner. Id. at 365-66. The Flanigan court agreed with the Roberts court, holding that the law does not "allow Flanigan to pass the buck in this way." Id. at 366 (citing Roberts, 28 S.W.3d at 621). The Flanigan court held that "Flanigan's wholesale reliance on the process server to exercise due diligence does not constitute due diligence on Flanigan's part as a matter of law." Id. (citing Roberts, 28 S.W.3d at 621).
The court went on to say that "even if Flanigan's reliance on the process server could establish a fact issue…additional delays between filing and service remain unexplained," and that Flanigan provided no summary judgment evidence to explain these additional gaps. Id. Particularly, the court pointed to the week-long gap between filing and requesting citation, the nine-day gap between receipt of citation and when the citation was forwarded to the process server, and the additional 10-day gap in hiring a second process server once the first was deemed to be inadequate. Id. The court held that those gaps also establish a lack of diligence as a matter of law. Id. at 366-67.
We have previously held that reliance on a process server to effectuate service, without more, is not a valid exercise of due diligence as a matter of law. See Sanderson v. Vela, No. 05-02-01157-CV, 2003 WL 1564314, at *2 (Tex. App.- Dallas Mar. 27, 2003, no pet.) ("Furthermore, we conclude that appellant has not offered any reasonable or valid excuse for his delay. A party may not abdicate responsibility for timely service to a process server.") (internal citations omitted); see also, e.g., Flanigan, 613 S.W.3d at 361; Roberts, 28 S.W.3d at 618; Carter v. MacFayden, 93 S.W.3d 307 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); Ventura v. Vasquez, No. 01-19-00240-CV, 2019 WL 6904545, at *4-5 (Tex. App.- Houston [1st Dist.] Dec. 19, 2019, no pet.). Notably, in Sanderson, the plaintiff requested service from a process server, waited four months, and then took no other steps to ensure that service was effectuated, other than a few phone calls. Id. Further, Sanderson also had an initial six month period of inaction prior to the aforementioned actions. Id.
The facts of the present case are distinguishable from those of Flanigan, Roberts, and Sanderson. The record reflects that Barber requested process the same day he filed the petition. Although he was out of the office the following day, Barber's attorney gave the citation to his trusted, regular process server when he returned to the office. When that process server, after only a week, told the attorney she would be unable to make the trip, Barber's attorney began looking for, and quickly located, a constable to serve citation. He promptly mailed the citation to the constable, who then served the citation a week after receipt. With hindsight, it is easy to say that Barber's attorney should have followed up with the process server and constable after a day or two, or that he should have sent the citation via certified mail or called the constable to confirm receipt. However, the standard is "due diligence," not perfection, and we must hold Barber to the standard expected of a reasonable attorney in similar circumstances. See Seay-King, 2022 WL 1284170, at *6. Accordingly, we consider whether an inference can be drawn from the facts presented here that the delay in serving citation was inadvertent.
Unlike in Flanigan, Barber requested citation and filed his petition simultaneously, and also unlike in Flanigan, Barber's attorney gave the citation to a trusted process server at his first available opportunity. The Roberts court explicitly noted that plaintiff failed to exercise due diligence because she did not seek alternative service methods, such as a constable, whereas here, Barber took steps to locate and secure a constable's assistance upon learning that his regular process server was unable to complete the job. And perhaps most importantly, unlike in Sanderson and Flanigan, there are no unexplained gaps of time, and Barber's attorney's affidavit attempts to provide at least some explanation covering each period of time after citation was issued.
Based on the record before us, and resolving all inferences and doubts in favor of Barber, we conclude there is a genuine issue of material fact as to the existence of due diligence which should be resolved by a jury and not by the court as a matter of law. See Seay-King, 2022 WL 1284170, at *7 (citing Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App.-Houston [1st Dist.] 1993, writ denied). Thus, because the trial court granted summary judgment on a lack of diligence in serving Burns, it erred in doing so. We sustain Barber's sole issue.
V. CONCLUSION
We reverse the trial court's order granting Burns summary judgment and remand the case for further proceedings.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant CODY PERSHING BARBER recover his costs of this appeal from appellee ROBERT F. BURNS.