The issue presented is whether the unexplained failure to serve process on a defendant for periods totaling more than three years establishes lack of diligence as a matter of law. The trial court held that it did; the court of appeals held that it did not. We agree with the trial court.

Plaintiffs Ambrosia A. DeLeon and Max M. Castillo sued Gary Douglas Gant for personal injuries and property damage incurred in an automobile accident which occurred on August 29, 1979. Plaintiffs filed suit within two years, on April 8, 1981, but Gant was not served until July 7, 1987, more than six years after suit was filed and almost eight years after the accident. The trial court granted summary judgment for Gant on the grounds that DeLeon and Castillo's claims were barred by the applicable two-year statute of limitations, Texas Civil Practice Remedies Code Annotated section 16.003 (Vernon 1986). The court of appeals reversed, holding that the summary judgment proof raised a fact issue concerning DeLeon and Castillo's diligence in effecting service. The court of appeals remanded the case for trial. 773 S.W.2d 396 (1989).

To "bring suit" within the two-year limitations period prescribed by section 16.003, a plaintiff must not only file suit within the applicable limitations period, but must also use diligence to have the defendant served with process. 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. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam).

To obtain summary judgment on the grounds that an action 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, 520 S.W.2d at 891. In this case, the uncontroverted summary judgment proof establishes 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. Specifically, the affidavits of plaintiffs' own counsel filed in opposition to defendant's motion for summary judgment, summarized by the court of appeals, show that plaintiffs did nothing to obtain service on defendant in the more than six months from June 12 to December 31, 1981, in the more than twenty months from March 16, 1983, to November 9, 1984, and in the more than twelve months from May 28, 1986, to June 3, 1987. 773 S.W.2d at 397-398. Texas courts have consistently held that due diligence was lacking as a matter of law based on unexplained lapses of shorter duration. See, e.g., Rigo, 458 S.W.2d 180 (17 1/2 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) (3 3/4 months between filing and issuance of citation and one month between issuance and service). Plaintiffs' unexplained delay of three periods totaling 38 months in obtaining service on defendant establishes failure to use diligence as a matter of law.

Because the court of appeals' decision conflicts directly with Rigo, a majority of the Court grants Gant's application for writ of error pursuant to Rule 133(b) of the Texas Rules of Appellate Procedure, and without hearing oral argument, reverses the judgment of the court of appeals and affirms the judgment of the trial court.

Summaries of

Gant v. DeLeon

Supreme Court of Texas

Apr 25, 1990

786 S.W.2d 259 (Tex. 1990)

holding that due diligence may be lacking as a matter of law based on unexplained lapses in activity

Summary of this case from Stockton v. Offenbach, M.D

holding that unexplained delay of three periods totaling 38 months in obtaining service demonstrated lack of diligence as a matter of law

Summary of this case from Parr v. HEB Grocery Co.

holding that the plaintiff did not exercise due diligence when he failed to provide service for three periods that totaled thirty-eight months and offered no explanation for the delays

Summary of this case from Morris v. Terrazas

holding that plaintiff failed to exercise due diligence as matter of law because he provided no explanation for delays in service for three periods totaling thirty-eight months

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holding that plaintiff failed to exercise due diligence as matter of law because he provided no explanation for delays in service for three periods totaling thirty-eight months

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holding that, though not expressed in TEX.R. CIV. P. 22, service of process is required to "commence" suit

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holding that plaintiffs' unexplained delay of three periods totaling thirty-eight months in obtaining service on defendant was lack of due diligence

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holding that date of service relates back to date of filing if plaintiff exercised due diligence in effecting service

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holding that date of service relates back to date of filing if plaintiff exercised due diligence

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holding summary judgment proper where uncontroverted summary judgment proof established lack of due diligence

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holding service relates back to filing date if service is diligent

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finding a lack of due diligence where evidence showed unexplained gaps in attempted service of six, twelve, and twenty months and citing cases finding a lack of due diligence based on "unexplained lapses" of 3¾, 6, 7?, 10, and 17½ months

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finding lack of due diligence as a matter of law where plaintiffs served the defendant six years after limitations expired and failed to explain three separate periods of delay consisting of six months, twenty months, and twelve months

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concluding that requirement to "bring suit" under section 16.003 of Civil Practice and Remedies Code includes service of process and that plaintiffs failed to use diligence "during three extended periods in the six years it took plaintiffs to serve defendant" with their personal injury lawsuit

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In Gant, the Texas Supreme Court didn't make any blanket determination about how much time constituted a lack of due diligence.

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setting out the due diligence requirements inherent in the Texas statute of limitations

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In Gant, however, we held that a plaintiff was not diligent as a matter of law where no explanation was offered for gaps in service for three different periods ranging from six to twenty months.

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In Gant, for example, we held that the plaintiff had failed to exercise due diligence as a matter of law because he provided no explanation for delays in service for three periods totaling thirty-eight months.

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filing of suit stops limitations if diligence is exercised in service

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In Gant, the supreme court considered the cumulative period between the time the plaintiff filed the lawsuit and successfully accomplished service on the defendant after the expiration of the statute of limitations, focusing on the plaintiff's unexplained delay in obtaining service.

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measuring periods of delay from date suit was filed

Summary of this case from Sharp v. Kroger Tex. L.P.

explaining that if plaintiff files suit within statute of limitations but does not serve defendant until after deadline passed, date of service "relates back to the date of filing if the plaintiff exercised diligence in effecting service"

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noting uncontroverted evidence establishes facts as a matter of law

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noting that Texas courts hold due diligence lacking as a matter of law based on unexplained shorter periods of time

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In Gant the supreme court pointed out that Texas courts have consistently held that due diligence was lacking as a matter of law based on unexplained lapses of time between the date a claimant filed suit and the date of service.

Summary of this case from Lexington Insurance v. Buckingham Gate, Ltd.

Gant v. DeLeon

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