Opinion
No. 05-07-01024-CV
Opinion issued June 19, 2008.
On Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 06-02029-H.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Opinion By Justice WHITTINGTON.
MEMORANDUM OPINION
Terrence M. Gore, Executor of the Estate of Dorothy Springer, challenges the summary judgment granted in favor of the City of DeSoto. On February 16, 2004, Dorothy Springer died after being struck by a water utility truck owned by the City. On February 16, 2006, the last day before the statute of limitations was to run on any claims arising from the occurrence, Gore, as the representative of Springer's estate, filed suit against the City. Gore did not obtain service of process on the City until June 28, 2006. The City moved for summary judgment on the ground Gore did not serve the City with process until more than two years and four months after the occurrence and the statute of limitations barred his claims as a matter of law. The trial judge granted the City's motion for summary judgment. On appeal, Gore argues the trial judge erred in granting summary judgment because the summary judgment evidence raises a fact issue as to whether he used due diligence in obtaining service of process upon the City. We conclude the summary judgment evidence does not establish Gore failed to use due diligence as a matter of law. Accordingly, we reverse the trial court's summary judgment and remand this cause for further proceedings.
On February 16, 2004, Springer was attempting to walk across the intersection of Hampton and Beltline roads in Dallas, Texas. As alleged by Gore, Springer was struck in the intersection by a water truck driven by Walter Biggins, a City employee who was operating the water truck in the course and scope of his employment. Gore alleges Springer ultimately died as a result of the injuries she received in the occurrence.
On February 16, 2006, Gore filed this lawsuit against Walter Biggins, his wife Cynthia, and the City. On the same day, Gore requested and the district clerk issued citations to all three defendants. Gore requested the citations be served by "USPS, certified mail, restricted delivery, return receipt." This method of service of citation is authorized by the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 106(a)(2). On March 7, 2006, the district clerk mailed the three citations with attached copies of Gore's petition to the defendants. Walter was served with citation on March 20, 2006. Walter and Cynthia both filed original answers to Gore's suit on April 7, 2006. The citation to the City was returned unserved to the district clerk also on April 7, 2006. According to the summary judgment evidence, Gore did not learn the City's citation had been returned to the district clerk unserved until June 23, 2006. Upon learning the City's citation had been returned unserved, Gore obtained issuance of a new citation on the same day and requested service by the constable. The City was served on June 28, 2006.
After the Bigginses were dismissed from the case by nonsuit, the City moved for summary judgment on the sole ground Gore's suit was barred by limitations because Gore failed to use due diligence in obtaining service of process upon the City after the limitations period had expired. The trial judge granted the City's motion for summary judgment. This appeal ensued.
In his sole issue on appeal, Gore argues the trial judge erred in granting the City's motion for summary judgment on the ground that his claim was barred by the statute of limitations due to the delay in service of process upon the City after the expiration of the limitations period. For the reasons that follow, we agree.
We review the traditional summary judgment on the City's affirmative defense of statute of limitations under well known standards. See Tex. R. Civ. P. 166a(c); Jones v. Blume, 196 S.W.3d 440, 445 (Tex.App.-Dallas 2006, pet. denied). The City bears the burden to conclusively prove all elements of its affirmative defense as a matter of law. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
A statute of limitations is designed to encourage a plaintiff to bring suit within a limited period of time and notify the defendant of the existence of the claim so the defendant may prepare its defense and preserve evidence in a timely manner. Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex.App.-Dallas 1999, no pet.). To "bring suit" within the applicable statute of limitations, the plaintiff must both file suit within the appropriate time period and use due diligence to serve the defendant with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). Because notice to the defendant is an important goal of statutes of limitations, we look to whether the plaintiff had a bona fide intention to have process issued and served at the time he filed suit. Broom, 992 S.W.2d at 664. The plaintiff's intention to have process issued and served at the time he files suit is evidenced by his diligence in obtaining issuance and service of process upon the defendant. Broom, 992 S.W.2d at 664. Thus, when a plaintiff files suit within the limitations period but does not obtain service upon the defendant until after the period has expired, the date of service relates back to the date of filing only if the plaintiff has exercised diligence in obtaining service. Gant, 786 S.W.2d at 260. The degree of diligence a plaintiff is required to use is that of an ordinary prudent person under the same or similar circumstances. Belleza-Gonzalez v. Villa, 57 S.W.3d 8, 12 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
To obtain summary judgment on the ground the suit was filed but citation was not served within the limitations period, the defendant must show that, as a matter of law, the plaintiff did not exercise diligence to obtain service of citation. Broom, 992 S.W.2d at 664. Generally, diligence is a question of fact, but if no reason is offered for the delay in service of citation or the length of time and the plaintiff's actions are such that diligence is conclusively negated, lack of diligence will be found as a matter of law. Auten v. DJ Clark, Inc., 209 S.W.3d 695, 699 (Tex.App.-Houston [14th Dist.] 2006, no pet.).
When Gore filed this suit on February 16, 2006, he requested and received issuance of citation by the district clerk with respect to all three named defendants, including the City. Thus, the record shows Gore initially exercised diligence in obtaining issuance of citation upon the City. The summary judgment record reflects the district clerk did not mail the citations as requested by Gore until March 7, 2006. Nothing in the record indicates this delay in mailing the citations by the district clerk is unusual or should be attributed to a lack of diligence by Gore. After the citations were mailed, Walter was served on March 20, 2006 and both he and his wife, Cynthia, filed general denials on April 7, 2006. That same day, the City's citation was returned to the district clerk unserved. The summary judgment record reflects that, at a minimum, Gore has raised a fact issue regarding whether he had clear intention to have process both issued and served upon the City from the date of filing of the suit until the date he could have learned the City's citation was returned to the court unserved. See Broom, 992 S.W.2d at 664.
The City cites as authority our opinion in Broom v. MacMaster in which service was effected upon the defendant after a four-month delay, including a three-month delay in issuance of process by the district clerk. In Broom, the plaintiff's attorney did nothing to obtain issuance of process for the defendant Presbyterian Hospital for three months following the filing of suit. Broom, 992 S.W.2d at 664. In fact, Broom's attorney stated he withheld issuance of process on the hospital because there was still a question in his mind about whether the hospital was an appropriate party. Broom, 992 S.W.2d at 664-65. We concluded the three-month delay in obtaining issuance of process against the hospital showed lack of diligence as a matter of law and demonstrated that Broom did not have a bona fide intention to have process issued and served at the time filed suit. See Broom, 992 S.W.2d 665. In Broom, we considered the delay in obtaining issuance of process upon a defendant. Here, Gore requested and received issuance of process upon the City on the same day he filed suit, February 16, 2006. Thus, Broom is not controlling with respect to Gore's initial request for issuance of process to the City.
In this case, our analysis with respect to the time period following return of the City's citation to the district clerk unserved involves different facts. In his affidavit in response to the City's motion for summary judgment, Gore states the City's citation was returned to the district clerk unserved on April 7, 2006 although the citation itself is not in the record before us. There is no evidence in the summary judgment record showing on what date Gore could have learned the City's citation had been returned unserved, although this date would have been sometime on or after April 7, 2006. Therefore, Gore's delay in obtaining reissuance and service of the City's citation is two and one-half months or less because when he learned of the unserved citation on June 23, 2006, he had it reissued on the same day and it was served by the constable on June 28, 2006. Gore timely requested both issuance and service of process upon all three defendants named in the suit. He was successful in serving Walter, and both Walter and his wife filed original answers and began defending the suit in the trial court. Gore assumed, incorrectly, that the City had also been served with process and if there was any problem with service, he would be notified by the district clerk. Without commenting on the persuasiveness of Gore's stated reasons for the delay in serving the City, we conclude the facts of this case do not establish as a matter of law that Gore did not have a "bona fide intention" to have process issued and served upon the City at the time he filed suit. See Broom, 992 S.W.2d at 664.
We conclude the City failed to carry its summary judgment burden of proving as a matter of law Gore did not exercise diligence in obtaining service of process upon the City. Without knowing the date Gore could have learned the City's citation had been returned unserved, the time period during which Gore's diligence is to be evaluated cannot be determined. Further, based on the facts of this case, a delay of two and one-half months or less does not establish Gore's lack of diligence as a matter of law. See Auten, 209 S.W.3d at 699 (generally question of diligence is question of fact).
We conclude the trial judge erred in granting the City's motion for summary judgment. Accordingly, we reverse the summary judgment and remand this case to the trial court for further proceedings.